18-CIV-05383 ADRIANA J. QUINTERO VS. STEVEN A. WEINKAUF, ET AL.

ADRIANA J. QUINTERO STEVEN A. WEINKAUF
MICHAEL B. BASSI

DEFENDANT STEVEN A. WEINKAUF’S DEMURRER TO COMPLAINT OF ADRIANA J. QUINTERO TENTATIVE RULING:

As to each asserted cause of action, Defendant Steven Weinkauf’s Demurrer to Plaintiff Adriana Quintero’s 10-4-18 Complaint is OVERRULED, on both procedural and substantive grounds.

Defendant did not serve the Demurrer in compliance with Code Civ. Proc. § 1005(b) (requiring service 16 court days prior to the hearing, plus five additional days if mailed), and is overruled on this basis alone. The Demurrer also fails on the merits, as explained below.

The First Cause of Action states a claim for stalking under Civ. Code § 1708.7. Code Civ. Proc. § 430.10(e). The Complaint alleges exigent circumstances made it impractical or unsafe for Plaintiff to request that Defendant cease his conduct because, for example, Defendant was acting under cover of darkness, concealed his identity, and was employing deadly weapons. Complaint, ¶¶4-11. These allegations are sufficient to state a claim for relief under § 1708.7. The cause of action is not uncertain. Code Civ. Proc. § 430.10(f). A demurrer for uncertainty lies where defendant cannot reasonably respond—i.e., cannot determine what allegations must be admitted or denied, and/or what are claims are directed against him. Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. The allegations here are sufficiently clear to enable Defendant to respond.

The Second Cause of Action states a claim for assault. Code Civ. Proc. § 430.10(e). Plaintiff alleges Defendants’ use of a crossbow and gun placed her in apprehension of harmful and/or offensive conduct. Construed liberally, these allegations sufficiently state a claim for relief at the pleading stage.

The Third Cause of Action states a claim for intentional infliction of emotional distress. Code Civ. Proc. § 430.10(e). The allegations regarding Defendant’s use of a crossbow and firearm adequately plead “outrageous” conduct. CACI 1600.

The Fourth Cause of Action states a claim for domestic violence under Civ. Code § 1708.6. Code Civ. Proc. § 430.10(e). The alleged facts suggest Defendant intentionally or recklessly placed Plaintiff in reasonable apprehension of imminent serious bodily injury to herself. ¶¶5-9, 24.

Plaintiff’s Request for Judicial Notice of documents filed in this case and the related Contra Costa County Superior Court case is GRANTED. Evid. Code § 452(d).

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

18-CLJ-00959 BARULICH DUGONI LAW GROUP, INC. VS. BRANDON ABBEY, ET AL.

BARULICH DUGONI LAW GROUP, INC. BRANDON ABBEY
MARIO B. MUZZI JAN J. KLOHONATZ

MOTION FOR ORDER TO COMPEL BRANDON ABBEY TO ATTEND AND TESTIFY AT DEPOSITION AND TO IMPOSE MONETARY SANCTIONS TENTATIVE RULING:

Plaintiff BARULICH DUGONI LAW GROUP, INC.’s Motion to Compel Deposition is DENIED. Plaintiff’s moving papers do not demonstrate that a good-faith meet and confer effort was made prior to filing the instant motion, as required by Code Civ. Proc. §§ 2025.450(b)(2) and 2016.040. It appears the parties had already agreed upon a deposition date of November 6, 2018, yet Plaintiff filed this motion two weeks in advance, on October 24, 2018. The motion is therefore denied.

Defendant’s request for monetary sanctions is GRANTED in the amount of $1,800.00. Plaintiff is ordered to pay this amount no later than December 14, 2018.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

Case Number: BC659100 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION GRANTED

I. INTRODUCTION

On April 26, 2017, Plaintiff Richard Egoyan (“Plaintiff”), a minor, by and through his Guardian Ad Litem, Ruben Egoyan, filed this action against Defendants Cabrini Villas Homeowners Association (“Cabrini”), Gennadi Garbian (“Gennadi”), Gabroch Garibian, Araksiya Azaryan, and Gagik Rostomyan (“Rostomyan”) for negligence, battery, and intentional infliction of emotional distress arising out of an incident where Genadi poured hot water on Plaintiff’s chest. Cabrini moves for summary judgment.

II. FACTUAL BACKGROUND

Plaintiff Richard Egoyan lived at Cabrini Villas where Cabrini was the homeowners association. (Undisputed Material Fact “UMF” No. 1.) On July 30, 2015, 11-year-old Plaintiff Richard and 12-year-old Gennadi Garbian were scheduled for a group tennis lesson with Rostomyan, who also lived at Cabrini Villas. (UMF Nos. 4-6.) Plaintiff and Gennadi were given permission to leave the lesson and to go use the pool because it was a particularly warm day. (UMF No. 7.) Plaintiff had used the pool after tennis lessons several times before and used it 4-5 times per week during the summer. (UMF No. 9.) Cabrini allows guests in the pool area. (UMF No. 10.) Plaintiff asked Gennadi for a cup of cold water. Gennadi retrieved a cup of cold water and a cup of hot water from a water dispenser in the kitchen. (UMF No. 13.) Gennadi then intentionally threw the hot water on Plaintiff’s chest. (UMF No. 17.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

The elements of negligence are duty, breach, causation and damages. (County of Santa Clara v. Atl. Richfield Co. (2006) 137 Cal.App.4th 292, 318.) As framed by the Complaint, Plaintiff alleged that Cabrini owed Plaintiff a duty to ensure that Plaintiff would be safe and not suffer personal injuries and/or emotional distress. (Complaint, ¶ 26.) Plaintiff contends Cabrini breached its duty by failing to establish and/or enforce rules regarding minimum age requirements to use the pool area without supervision, failing to ensure that non-residents did not have access to recreational facilities, failing to secure the office facility which allowed access of minor children to hot scalding water, negligently supervising, hiring, and trianing security personnel, and negligently supervising, hiring, and training its tennis court personnel, including Rostomyan. (Complaint, ¶ 27.) Plaintiff also alleged Rostomyan had a duty to ensure the safety of the children placed in his care and breached his duty by releasing Gennadi to play in the pool area without his supervision. (Complaint, ¶¶ 28-30.)

Cabrini argues it had no duty to prevent Gennadi from spontaneously throwing hot water on his friend. Cabrini contends that this attack was an intentional battery by Gennadi, as evidenced by the surveillance video, photos, and Plaintiff’s deposition testimony. (Pltff’s Depo., 44:2-45:16, 50:19-51:23, 73:1-3, 76:11-77:3; Exhs. 19, 20.) Cabrini argues that in order to impose a duty on Cabrini to prevent the wrongful act of a third-party, there must be actual knowledge of the danger posed by the third party. Cabrini contends that Plaintiff’s Complaint fails to allege Cabrini had actual knowledge that Gennadi would harm Richard. Cabrini states there were no prior hot water attacks and argues it had no actual knowledge that Gennadi would attack Richard.

“Absent a legal duty, any injury is an injury without actionable wrong.” (Romero v. Superior Court of San Diego County (2001) 89 Cal.App.4th 1068, 1078.) “Duty, being a question of law, is particularly amenable to resolution by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.) “While it is the province of the jury, as trier of fact, to determine whether an unreasonable risk of harm was foreseeable under the particular facts of a given case, the trial court must still decide as a matter of law whether there was a duty in the first place, even if that determination includes a consideration of foreseeability.” (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214.) “If there is no duty, there can be no liability, no matter how easily one may have been able to prevent injury to another.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 150.)

California courts have routinely held that even where a special relationship is formed, like that of a child and a caretaker, a defendant has no duty to protect a plaintiff from unforeseeable third-party criminal conduct. (See, e.g., J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 398 [“Because there was no evidence showing [defendant] had actual knowledge of E.Y’s assaultive tendencies or that he posed any risk of harm, his conduct was not foreseeable and [defendant] owed no duty to protect against the attack”]; Wiener v. Southcaost Childcare Centers, Inc. (2004) 32 Cal.4th 1138 [no duty where criminal act was unforeseeable]; Romero, supra, 89 Cal.App.4th at pp. 1084 [no duty where undisputed evidence showed defendants had no knowledge of minor boy’s propensity to sexually assault females].) For example, in Margaret W., supra, the defendant assumed a special relationship with the minor plaintiff by inviting plaintiff to her home for a sleepover with defendant’s daughter. (Margaret W., supra, 139 Cal.App.4th at pp. 152-153.) The defendant left the girls unsupervised and plaintiff voluntarily left the house with boys who later assaulted her. (Id. at pp. 145-148.) The court of appeal affirmed a grant of summary judgment in favor of the defendant on plaintiff’s negligence claims and emphasized that “[i]n order for there to be a duty to prevent third party criminal conduct, that conduct must be foreseeable” and “foreseeability must be measured by what the defendant actually knew.” (Id. at pp. 152, 156.)

Cabrini argues that the theories alleged in the Complaint do not support the imposition of a duty on it to prevent this intentional tort by Gennadi. Cabrini argues it also cannot be vicariously liable for the acts or omissions of Rostomyan because Rostomyan was not an employee. Rostomyan was an independent contractor who rented the use of the tennis courts and an empty office for a fee, and then found his own clients who paid him directly for lessons that Rostomyan alone controlled.

It is undisputed that Genandi threw the hot water on Richard suddenly, without provocation, and without warning. (UMF No. 17.) It is also undisputed that there were no prior hot water attacks at Cabrini. (UMF No. 15.) Further, at his deposition, Plaintiff testified he did not know why Gennadi threw the water on him. (Pltff’s Depo., 44:21-45:2.) The Court finds Cabrini has met its initial burden of showing Plaintiff cannot prove the duty element of negligence absent a showing Cabrini had actual knowledge of Gennadi’s propensity or intention to harm Richard. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues that it is a triable issue of fact whether Rostomyan was an employee or independent contractor. Plaintiff argues Cabrini advertised a “tennis pro” as part of its amenities and that Cabrini retained control over the lesson rates charged, the court location and times for lessons, and tennis rules, but failed to require Rostomyan to obtain liability insurance or liability waivers from his tennis students. (Plaintiff’s Additional Facts “AF” Nos. 20-30.) Further, Rostomyan operated out of the “Cabrini Village Tennis Club” and posted advertisements on Cabrini property with his photo below the name “Cabrini Villas Tennis Academy.” (AF Nos. 20, 21.)

Plaintiff argues that at the time of the incident, both Richard and Gennadi were attending a group tennis lesson under Rostomyan’s supervision and that the rules and regulations prohibit unsupervised minors under the age of 14 from utilizing an adjacent pool complex. (AF Nos. 32, 35, 38, 39.) Plaintiff argues Cabrini had prior knowledge of “problems” with unsupervised minors utilizing the pool complex and that Cabrini instructed both security personnel and Rostomyan to exclude unsupervised minors from the pool complex. (AF Nos. 38, 39.)

Plaintiff argues the special relationship between Rostomyan and the children created a heightened duty of care to prevent harm, and the negligent supervision of the two children were contributing causes of Plaintiff’s injuries. Plaintiff contends that the level of foreseeability required to impose a duty here is broad and does not require evidence of prior similar incidents. Plaintiff argues Cabrini had a duty to take precautions that were already defined and in place, but disregarded by security personnel and Rostomyan.

In Reply, Cabrini argues Plaintiff fails to show a triable issue of material fact exists as to the central issue—whether Cabrini had actual knowledge of Gennadi’s propensities such that this third-party wrongful act was foreseeable.

Having reviewed the moving, opposition, and reply papers, the Court finds Plaintiff has failed to meet his burden of showing at triable issue of fact exists as to Cabrini’s duty.

In order to impose a duty on Cabrini to prevent a third-party from harming plaintiff, the foreseeability of the wrongful act by the third party must be measured by Cabrini’s actual knowledge. Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has only presented evidence that Cabrini knew there were “problems” in the pool area and advised its staff that minors should not be unsupervised in the pool area. However, there is no evidence that these “problems” included minors accessing and pouring hot water on each other, or other such intentional acts. While Plaintiff urges the Court to “evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced [so] that liability may appropriately be imposed on the negligent party,” Plaintiff neglects the case law cited by Cabrini. A category of negligent conduct that might be foreseeable if minors are left unsupervised at the pool might be drowning or injury caused by minors playing in the pool area. It is not foreseeable, absent actual knowledge of his propensities, that Gennadi would splash his friend with a cup filled with hot water from a water dispenser – a criminal battery – if left unsupervised at the pool.

Generally, one has “no duty to act to protect others from the conduct of third parties.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) “No case has held that a defendant owed a duty to take steps to prevent or respond to third party crime on the basis of constructive knowledge or information the defendant should have known. We are not aware of any case involving liability for third party criminal conduct that has held that a special relationship creates a duty to investigate or that has charged a defendant with making forecasts based on the information such an investigation might have revealed.” (Margaret W., supra, 139 Cal.App.4th at p. 156.) The imposition of such a duty of care requires evidence of facts form which a trier of fact could reasonably find that the defendant adult had prior actual knowledge of the perpetrator’s propensities. (Id. at p. 153.)

Here, there is no evidence that Cabrini or Rostomyan had any prior knowledge of Gennadi’s propensity to intentionally cause harm to Plaintiff or anyone else. Even Plaintiff testified he did not know why his friend had poured hot water on him. Under the circumstances and for the same reason, Rostomyan cannot be liable for failing to supervise Gennadi or to prevent the attack on Plaintiff because he could not have known that Gennadi had dangerous propensities. For these reasons, Rostomyan’s employment status is of no relevance.

Therefore, Plaintiff has failed to meet his burden of showing a triable issue of material fact exists.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.

Case Number: BC666949 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTIONS TO COMPEL DEFENDANT’S FURTHER RESPONSES TO DISCOVERY REQUESTS; MOTION GRANTED, IN PART

This action arises out of a December 13, 2015 automobile accident. On March 2, 2018, Defendant Ashot Aloyan (“Defendant”) served Special Interrogatories, Set One and Demand for Documents, Set One on Plaintiff Ilya Ulian (“Plaintiff”). (Declaration of Lily Nhan, ¶ 3.) On May 6, 2018, Plaintiff served his responses. (Nhan Decl., ¶ 5.) Defendant moves to compel Plaintiff’s further responses and monetary sanctions. On August 28, 2018, the parties participated in an Informal Discovery Conference with the Court, but the issues were not resolved.

Upon receipt of responses to discovery requests, the propounding party may move for an order compelling a further response if the propounding party deems that the responses are evasive, incomplete, an objection is without merit or too general. (Code of Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses shall be accompanied by a meet and confer declaration (Code of Civ. Proc., § 2031.310, subd. (b)(2)), and notice of the motion shall be given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the parties have agreed in writing, or the party requesting the order waives any right to compel further responses (Code of Civ. Proc., § 2031.310, subd. (c).).

Motions to compel further responses to interrogatories, requests for production of documents, and requests for admission must include a separate statement providing all the information necessary to understand each discovery request and response at issue. (Cal. Rules of Court, rule 3.1345.) The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and full response. (Cal. Rules of Court, rule 3.1345(c).)

Plaintiff states supplemental responses were served on August 27, 2018. Plaintiff contends these supplemental responses moot the present motions and that it was a misuse of the discovery process to proceed with these motions after supplemental responses were served.

However, the supplemental responses were served approximately one week before these Motions were originally set for hearing and were still insufficient. Further, Plaintiff’s oppositions were not filed until the day before these Motions were originally set for hearing. The Court is unconvinced by Plaintiff’s claims that the parties agreed to “hold” everything until responses to subpoenas were received, especially where Plaintiff agreed at the IDC to produce further responses. Therefore, the Court makes the following orders:

Demand for Documents

A motion requesting an order compelling further responses to a demand for production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code of Civ. Proc., § 2031.310, subd. (b)(1).) If good cause is shown, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

As to Requests Nos. 11, 13, 14, 24, 35, 36, 37, 38, 50, and 52, the request for further responses is GRANTED. Plaintiff is ordered to provide further, code-compliant responses, within twenty (20) days of the date of this Order. Specifically, Plaintiff must state that if documents are not within his custody or control, the names of those who Plaintiff believes may have the requested documents. (Code of Civ. Proc., § 2031.230.)

As to Requests Nos. 2, 31, 32, 40-47, and 49, the request for further responses is DENIED. These requests seek documents relating to healthcare providers and medical treatment from 2005 to present. Plaintiff objected on grounds of invasion of privacy, that the request is burdensome, and that the request is overbroad as to time. The Court agrees that the time period of 2005 to present is overbroad. Defendant contends Plaintiff suffered injuries in a prior 2014 automobile accident. This does not explain why records are requested starting in 2005. Defendant failed to show good cause justifying the discovery sought.

Special Interrogatories

There is no “good cause” requirement where the requesting party is seeking further responses to interrogatories. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220.) Rather, the burden is the responding party to justify an objection or to show a response was complete. (Ibid; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

As to Requests Nos. 20-23, 25-29, 31-33, and 37, the request for further responses is GRANTED. Plaintiff is ordered to provide further, code-compliant responses, within twenty (20) days of the date of this Order.

Monetary Sanctions

The court shall impose a monetary sanction against the party who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or demand for production of documents, unless the party subject to the sanction acted with substantial justification or the sanction would otherwise be unjust. (Code of Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h), 2033.290, subd. (d).) Monetary sanctions are GRANTED and imposed against Plaintiff and his counsel of record, jointly and severally, in the reduced amount of $955.00 for reasonable attorney’s fees incurred in preparing these Motions, participating in the IDC, and filing fees. This sanction is to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Case Number: BC706510 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR PROTECTIVE ORDER; MOTION GRANTED

On May 17, 2018, Plaintiff Carl Evans (“Plaintiff”) filed this action against Defendants Kate G. Duffy (“Duffy”) and James Theodore Carlson (“Carlson”) (collectively, “Defendants”) for negligence, negligence per se, and negligent entrustment relating to an October 25, 2017 automobile versus motorcycle collision. On September 5, 2018, Plaintiff served 152 special interrogatories on Carlson and 93 special interrogatories on Duffy. (Declaration of Grayson L. Sobel, ¶ 4; Exh. B.) Defendants seek a protective order as to these special interrogatories.

A party may propound thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action. (Code of Civ. Proc., § 2030.030, subd. (a).) Subject to the right of the responding party to seek a protective order, any party seeking to propound a greater number of specially prepared interrogatories to another party must attach a supporting declaration stating the greater number of interrogatories is warranted because of any of the following: (1) the complexity or the quantity of the existing and potential issues in the case; (2) the financial burden on a party entailed in conducting the discovery by oral deposition; or (3) the expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought. (Code of Civ. Proc., §§ 2030.040, subds. (a)(1)-(a)(3), 2030.050.)

Unless a declaration has been made, the responding party need only respond to the first 35 special interrogatories if the responding party first makes an objection that the limit has been exceeded. (Code of Civ. Proc., § 2030.030, subd. (c).) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories. (Code of Civ. Proc., § 2030.040, subd. (b).)

The court, for good cause shown, may make an order that justice requires to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. A protective order may include, but is not limited to, an order that: (1) the set of requests or particular requests in the set need not be answered at all; (2) that the number of requests is unwarranted; (3) that the time specified to respond to the requests be extended; (4) that a trade secret or other confidential research not be admitted or be admitted only in a certain way; or (5) that some or all of the answers to requests be sealed and thereafter opened only on order of the court. (Code of Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), 2033.080, subd. (b).)

If the motion is denied in whole or in part, the court may order that the responding party provide the discovery against which protection was sought on terms and conditions that are just. (Code of Civ. Proc., §§ 2030.090, subd. (c), 2031.060, subd. (c), 2033.080, subd. (c).)

Plaintiff’s counsel’s declaration states the need for the additional requests is due to the complex nature of the incident, numerous parties, and cross-complaints. (Sobel Decl., ¶ 5.) However, Defendants contend this is a simple matter involving a vehicle vs. motorcycle accident, without complex issues and the excessive special interrogatories are confusing and duplicative. (Sobel Decl., ¶ 6.) Defendants argue liability is disputed but that the witness to the accident supports Carlson’s version of events that Plaintiff bears full liability. (Sobel Decl., ¶ 7.) The parties met and conferred on September 18, 25, and October 4, 2018, but reached no agreement as to the special interrogatories. (Sobel Decl., ¶¶ 8-11.) Defendants also state this action is in the preliminary stages of discovery—Plaintiff’s subpoenaed medical records have not yet been received, no depositions have occurred, and Plaintiff’s IME has not been taken. Therefore, Defendants cannot attempt to answer a large majority of Plaintiff’s requests. (Sobel Decl., ¶ 12.)

Plaintiff’s counsel contends the number of special interrogatories is warranted because Defendants’ actions made this case “complex.” Plaintiff’s counsel states Defendants have made accusations against Plaintiff in their Answer—namely, that Plaintiff was “stopping/braking/slowing suddenly,” Plaintiff was not wearing a seatbelt, Plaintiff was driving drunk, and that Plaintiff did not have insurance. Based on these accusations by Defendants, Plaintiff seeks discovery supporting Defendants’ contentions. Plaintiff also seeks information regarding permission to use the vehicle Defendant was driving, contributory negligence, medical contentions, and mitigation of damages. Further, Plaintiff argues Defendant has purposefully withheld the contact information for third-party witness Chrissy Brit. (Declaration of Stephen D. Wegman, ¶ 6.) Defendants calendared the deposition of Ms. Brit, but 15 minutes prior to her scheduled deposition, Defendants cancelled the deposition. (Wegman Decl., ¶ 6.) Plaintiff has no contact information for Ms. Brit and her deposition has not been rescheduled. (Wegman Decl., ¶ 7.) Therefore, Plaintiff’s counsel contends Defendants have been “hiding the ball” and Plaintiff had no choice but to propound very succinct and specific contention requests that are followed up with questions relating to witnesses and documents. (Wegman Decl., ¶ 8.) Plaintiff’s counsel contends that the excessive number of requests is necessary so that he does not discover, in the middle of a jury trial, that Defendants have several witnesses accusing Plaintiff of drunk driving, among other things, as delineated in Defendants’ Answer. (Wegman Decl., ¶ 10.)

Having reviewed the moving, opposition, and reply papers, and the 245 special interrogatories propounded on Defendants, the Court finds Plaintiff has failed to meet his burden of justifying the excessive number of interrogatories propounded. The number of interrogatories are unduly oppressive and burdensome. For example, Requests Nos. 34-49 ask whether Defendant was using a cell phone in the thirty minutes prior to the accident, who Defendant was contacting, how long Defendant was using the cell phone, any supporting documents that Defendant was using the cell phone and who Defendant was contacting, the contact information for anyone with knowledge of Defendant’s use of the cell phone and who Defendant was contacting, who Defendant’s cell phone provider is, the contact information for anyone with knowledge of Defendant’s cell phone provider, and any documents that support Defendant’s cell phone provider. These requests are overbroad and the information sought could have been asked in two or three interrogatories. More importantly, form interrogatories, drafted by the Judicial Council, could have been used for the information requested in Plaintiff’s numerous special interrogatories. The Court is not convinced by Plaintiff’s assertion that Defendants are “hiding” witnesses, thus necessitating this excessive amount of interrogatories. Finally, it is unlikely that Plaintiff’s counsel will find himself “in the middle of jury trial” and discovering witnesses for the first time. Focused discovery and depositions will yield all information each side has with respect to this case. The Court is doubtful that this case involves complex issues such that the excessive number of interrogatories propounded is necessary.

The Motion for protective order is GRANTED and Defendants need not respond to more than the first 35 specially prepared interrogatories propounded by Plaintiff. The Court encourages the parties to meet and confer regarding whether, in light of this Order, Plaintiff wishes to withdraw the current set of specially prepared interrogatories to propound a new set of 35.

Defendants seek monetary sanctions. “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2030.090, subd. (d).) Monetary sanctions are GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $326.00 for two hours at defense counsel’s hourly rate of $133.00 and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Case Name: SAE Materials, Inc. v. Maldonado, et al.
Case No.: 17CV306257

Plaintiff/cross-defendant SAE Materials, Inc. (“Plaintiff” or “SAE”) moves for summary adjudication as to the first, third, eighth and ninth causes of action of its Second Amended Complaint against defendant/cross-complainant Richard Maldonado (“Richard”).

After full consideration of the evidence, separate statements and authorities submitted by the parties, the Court makes the following rulings:

SAE’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).) The Court notes that judicial notice is limited to the existence of these items and not the truth of their contents. (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.)

SAE’s motion for summary adjudication is DENIED.

As an initial matter, the Court disagrees, in part, with Richard’s assertion that SAE’s motion is procedurally improper because there is a difference between the element of damages and the element of injury/harm. Where the necessary element of the particular cause of action is the latter rather than the former, the plaintiff need not establish harm or injury in terms of a numerical amount because that question involves the remedy for the harm, which is not part of a cause of action. (See People ex rel. Feuer v. Superior Court (2015) 234 Cal.App.4th 1360, 1378.) No breach of contract claim is at issue in this motion like in Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, the authority on which Richard relies, and not all of the four causes of action that SAE seeks to summarily adjudicate in its favor and against Richard have damages as an element rather than harm/injury, contrary to Richard’s assertions. Damages are an essential element of a claim for breach of fiduciary duty, and therefore SAE is required to establish as a matter of law the amount of damages to which it is entitled as a result of defendants’ conduct. (See, e.g., Jameson v. Desta (2015) 194 Cal.Rptr.3d 152, citing Paramount Petroleum, 227 Cal.App.4th at 242 [judgment reversed on other grounds].) The same cannot be said for claims for intentional interference with economic advantage (see Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512 [necessary element is “economic harm proximately caused by the defendant’s actions]), inducing breach of contract (see Freed v. Manchester Service, Inc. (1958) 165 Cal.App.2d 186, 189 [necessary element is that valid contract was breached “resulting in injury to plaintiff”], and negligent interference with economic advantage (see Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1077-1078 [necessary element is that plaintiff was harmed by the defendant’s negligent interference].) Thus, with respect to three out of the four claims at issue in this motion (and assuming all of the other elements have been demonstrated), SAE need only establish that it was harmed/injured by Richard’s conduct in order to meet its initial burden, and not demonstrate the numerical amount of damages incurred.

With respect to the first cause of action for breach of fiduciary duty, the Court finds that SAE has failed to submit admissible evidence which establish the necessary elements of this claim.

SAE asserts that Richard violated his fiduciary duty of loyalty because he acted against its interest and completely in support of his own in forming a company that directly competes against SAE. SAE purports to submit evidence that Richard registered the dba for Meritronics Materials in 2016, while he was working for SAE, and then incorporate the entity thereafter, both as Meritronics Materials, LLC and Meritronics Materials, Inc., a company which competed directly with SAE. (UMF No. 7.) This evidence consists of a pleading filed in another civil action in this court in September 2017 entitled Meritronics Materials, Inc. v. HiQ Solar, Inc., Case No. 17CV315403. Generally, facts alleged in pleadings in a prior civil action may be admissible evidence against the pleader in the present action. (See, e.g., Magnolia Square Homeowner Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061.) But this is not the situation here, as Richard is not the pleader in the complaint currently at issue before the court. Therefore, none of the factual “admissions” in the Meritronics action can be utilized against Richard as admissible evidence here.

SAE additionally submits Richard’s response to a request for admission, where he admitted that HiQ Solar (“HiQ”) was a customer of SAE in 2016. But none of the other materials submitted by SAE that it cites to in its separate statement establish that HiQ began doing business with Richard after his employment with SAE was terminated. SAE relies on the pleadings in the Meritronics which, as stated above, cannot be used against Richard here, as well as discovery responses by HiQ in an action filed against it by SAE in this court entitled SAE Materials, Inc. v. HiQ Solar, Inc., Case No. 17CV317105, as well as portions of the deposition testimony of former employees of SAE. The discovery responses, particularly the responses to interrogatories, are problematic because, as Richard points out in his opposition papers, an answer to an interrogatory can only be used against the responding party, i.e., the party who gave the answer. (Code Civ. Proc., § 2030.410.) As to all other parties, the answers are inadmissible hearsay. (See Castaline v. City of Los Angeles (1975) 47 Cal.App.3d 580, 587-588.) Here, Richard was not the responding party, HiQ was. Consequently, HiQ’s interrogatory responses are inadmissible hearsay and cannot be used to establish the company’s relationship with Meritronics. As for the deposition testimony, particularly that of Mariano Salazar and Mauro Arango, none of the portions cited by SAE actually establish the “facts” they are purported by SAE to demonstrate. Thus, SAE fails to demonstrate with admissible evidence that Richard started Meritronics to compete directly with SAE and did in fact so compete.

SAE additionally fails to establish that Richard stole inventory, equipment, computers and other items from it to utilize in Meritronics. SAE cites to portions of Yates’ deposition testimony wherein he explains that he hired a private investigator to follow Richard to the premises of Meritronics and the investigator took photographs of equipment there that “could have been” stolen from SAE. (UMF No. 6.) Mr. Yates’ assertions in this regard amount to nothing more than speculation, with Mr. Yates himself unable to say for certain that those materials, which he saw in photographs, belonged to SAE.

SAE’s third cause of action for intentional interference with prospective economic advantage has five elements: “(1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1164-1165.) A plaintiff who seeks to recover for such interference has the burden of proving that the defendant’s interference was wrongful by some measure beyond the fact of the interference itself. (See Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 392-393.)

SAE maintains that it has met each of the aforementioned elements, asserting that it had business relationships with Stellartech and HiQ of which Richard was aware due to his having served as President of the company and that he went on, through Meritronics, to attempt to and do business with those entities. SAE further proclaims that Richard’s conduct was independently wrongful because it constitutes a breach of fiduciary duty. While it is true that a breach of fiduciary duty can constitute “independently wrongful” conduct for the purposes of the tort of intentional interference with prospective economic advantage (see Gemini Aluminum Corp. v. Cal. Custom Shapes (2002) 95 Cal.App.4th 1249, 1258), as articulated above, SAE fails to establish, with admissible evidence, that Richard breached his fiduciary duties to SAE. With respect to this cause of action in particular, SAE cites additional deposition testimony from Gary Seeger, Stellartech’s Person Most Knowledgeable, to establish that Stellartech refused to continue to do business with SAE because of Richard’s conduct, but a review of this testimony does not support this conclusion. Just based on the testimony cited, it is not clear what the nature of the “debacle” that Seeger is referring to is, or that Stellartech’s decision to part ways with SAE was the result of Richard’s conduct as opposed to Yates and Mr. Murphy’s. Even if the Court was willing to interpret the foregoing as laying blame for the disruption of the business relationship at Richard’s feet, there is no indication of what Seeger understood Richard to have done. Thus, the testimony cited by SAE fails to establish that Richard intentionally interfered with SAE and Stellartech’s relationship, and violated his fiduciary duties in doing so.

In the eighth cause of action, SAE alleges that Richard and Guy intended to and did induce Stellartech, HiQ and Photon Infotech to breach their agreements with SAE, causing SAE to suffer significant harm, including interfering with its ability to continue operating. (SAC, ¶ 67-74.) In order to succeed on a claim for inducing breach of contract, a plaintiff is required to prove the following: (1) the existence of a contract between the plaintiff and a third party; (2) the defendant was aware of that contract; (3) the defendant intended to cause the third party to breach the contract; (4) the defendant’s conduct caused the third party to breach the contract; (5) the plaintiff was harmed; and (6) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI No. 2200; see also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.)

Here, it is undisputed that contracts existed between SAE and Stellartech and HiQ and that Richard was aware of those contracts. (UMF Nos. 26, 27.) But SAE runs into the same issues that it did with its preceding claims, namely, it fails to offer admissible evidence (or any other evidence, for that matter) necessary to establish all of the elements of its cause of action. SAE relies on HiQ’s responses to interrogatories in a separate action, Richard’s complaint in a separate action, and portions of Seeger’s deposition testimony to establish Richard inducing HiQ and Stellartech to breach their agreements with SAE. As explained above, neither HiQ’s responses not Richard’s complaint are admissible evidence, and Seeger’s deposition testimony does not demonstrate what SAE claims that it does. Thus, SAE has not met its initial burden on this cause of action and is not entitled to summary adjudication in its favor.

Finally, on its remaining cause of action for negligent interference with economic advantage, as with the third cause of action, SAE identifies the “independently wrongful” conduct committed by Richard to be a breach of his fiduciary duties. However, as explained in greater detail above, SAE fails to submit admissible evidence which establishes that Richard breached his fiduciary duties. Consequently, SAE has not met its burden on the ninth cause of action and is therefore not entitled to summary adjudication of this claim.

Case Name: Galina Oleinikova-Davis v. David Gilman Ha
Case No.: 2018-CV-333647

Motion to Strike Punitive Damages Allegations by Defendant David Gilman Ha

Factual and Procedural Background

This is a motor vehicle accident case. On February 2, 2018, plaintiff Galina Oleinikova-Davis (“Plaintiff”) was operating a vehicle in the City of San Jose in Santa Clara County. (Complaint at ¶ 8.) At the time, Plaintiff was driving in the left-most lane of an expressway and approaching an intersection with a “green” traffic signal. (Id. at ¶ 10.)

As Plaintiff traveled toward the intersection, defendant David Gilman Ha (“Defendant”) approached her vehicle from behind, moved to the left of Plaintiff’s vehicle into a left turn lane, but continued to travel straight through the intersection. (Complaint at ¶ 10, subd. (a).) After passing the intersection, Defendant was illegally driving in the center divide lane/median, overtaking Plaintiff’s vehicle (which was still traveling in the left-most traffic lane) from the left. (Id. at ¶ 10, subd. (b).) As Defendant partially overtook Plaintiff’s vehicle, he entered the left-most traffic lane from the left (in which Plaintiff’s vehicle was still traveling). (Id. at ¶ 10, subd. (c).) In doing so, Defendant caused his vehicle to strike Plaintiff’s car from the left side, and then caused a further collision between their vehicles by immediately and abruptly stopping in the left-most traffic lane, even though there were no vehicles in front of him. (Ibid.)

On August 22, 2018, Plaintiff filed the operative Complaint against Defendant for negligence.

Motion to Strike Punitive Damages Allegations

Currently before the Court is Defendant’s motion to strike the punitive damages allegations in the Complaint. Plaintiff filed written opposition.

Meet and Confer Requirement

As a preliminary matter, the Court notes that Defendant did not meet and confer before filing the motion to strike.

Before filing a motion to strike, the moving party shall “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) This conference should occur at least five days before the deadline to file the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(2).)
When filing the motion to strike, the moving party must include a declaration stating either “the means by which the moving party met and conferred with [the other party] and that the parties did not reach an agreement resolving the objections raised by the motion to strike” or [the other party] “failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).) “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).)

Here, defense counsel failed to file a meet and confer declaration as required by Code of Civil Procedure section 435.5. Nor is there any indication in the moving papers that counsel engaged in meet and confer efforts before filing the motion to strike. In furtherance of judicial economy, the Court will overlook Defendant’s failure to comply with Code of Civil Procedure section 435.5 in this instance. The Court hereby admonishes defense counsel to comply with the Code of Civil Procedure with respect to future filings.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Analysis

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations omitted].)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (See Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

Here, Plaintiff’s prayer for relief includes a request for punitive damages. The claim for punitive damages is supported by allegations set forth in paragraph 11 which provides:

“Defendant engaged in despicable conduct. Defendant acted with conscious disregard for the safety of others including Plaintiff. Defendant acted with conscious disregard for the high degree of probability that his acts would result in injuries to others including Plaintiff. Plaintiff is entitled to punitive damages.”

(Complaint at ¶ 11.)

Such allegations constitute mere conclusions and are not supported by underlying facts of malice, oppression, fraud, or despicable conduct to establish a basis for punitive damages. The balance of the Complaint alleges facts to support Plaintiff’s claim for negligence but does not provide an award for punitive damages. Therefore, the punitive damages allegations are hereby stricken however Plaintiff will be given an opportunity to amend her pleading. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Disposition

The motion to strike punitive damages allegations is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

Case Name: Vinh Duc Nguyen, et al. v. Peter Pau, et al.

Case No.: 16CV302578

Motion for Summary Adjudication

Factual and Procedural Background

Plaintiff Vinh Duc Nguyen aka Vince D. Nguyen, individually and doing business as Newton Law Group (“Nguyen”), is a licensed California real estate broker. (Second Amended Complaint (“SAC”), ¶2.) In July 2011, plaintiff Nguyen and his wife, Teri Ha (“Ha”), entered into discussions with the principals of Vallco Shopping Mall, LLC (“VSM”), owners of real property known as the Vallco Fashion Mall located at 10123 North Wolfe Road in Cupertino (“Subject Property”), to exclusively represent VSM in connection with the sale of the Subject Property. (SAC, ¶¶7 – 8.)

On or about August 2, 2011, VSM and plaintiff Nguyen entered into an exclusive right to sell agreement entitled “Owner-Broker Agreement-Vallco Shopping Center” (“Listing Agreement”). (SAC, ¶9.) Pursuant to the Listing Agreement, VSM agreed plaintiff Nguyen would have the exclusive right to list and sell the Subject Property and procure a buyer to purchase the Subject Property with a minimum sale price of $100 million. (SAC, ¶10.) Specifically, VSM agreed that “[t]he first Buyer who submits the purchase contract, or a Letter of Intent to Seller, with proof of financial ability to buy the [Subject Property], together with a deposit amount earlier than the others has the right to buy the [Subject Property].” (Id.) Pursuant to the Listing Agreement, VSM agreed to pay plaintiff Nguyen and his associates a six percent (6%) commission based on the sale price, which also included the commission for the buyer’s broker. (Id.)

On August 9, 2011, plaintiff Nguyen entered into an agent/ sub-agent type agreement entitled “Broker Cooperation Agreement” with Marcus & Millichap (“M&M”) whereby plaintiff Nguyen agreed to pay a certain percentage of his commission to M&M in the event M&M was successful in assisting plaintiff Nguyen in procuring a buyer of the Subject Property. (SAC, ¶11.) M&M assigned Jeffrey John Taughinbaugh (“Taughinbaugh “) and Anh Stovall (“Stovall”) to work with plaintiff Nguyen. (Id.)

By the end of August 2011, M&M and plaintiff Nguyen obtained nine potential buyers each of whom executed a “Non-Circumvent Agreement” agreeing not to circumvent plaintiff Nguyen in purchasing the Subject Property. (SAC, ¶12.) On August 11, 2011, defendant Peter Pau (“Pau”), individually and doing business as Sand Hill Property Company, and Taughinbaugh executed a non-circumvent agreement (“NCA”) which repeatedly referenced Newton Law Group as one of the brokers for the owner of the Subject Property. (SAC, ¶15.) In the NCA, defendant Pau agreed that if he closed the purchase of the Subject Property, M&M and Newton Law Group would be “compensated the agreed upon fee in the Contract executed with the Owner on 8/2/2011.” (Id.) Defendant Pau also agreed that all negotiations would be conducted through M&M and acknowledged that defendant Pau “is not working with any other broker or agent in connection with the Property.” (Id.) Defendant Pau’s obligations under the NCA applied to a twelve month period beginning on the date of execution. (Id.)

Under the terms of the NCA, defendant Pau requested “Offering Materials” which M&M provided while assisting with negotiations. (SAC, ¶16.) Defendant Pau asked for additional information which plaintiff Nguyen provided along with assistance to defendant Pau. (Id.) Other people assisted plaintiff Nguyen in serving as VSM’s exclusive listing agent, including Ha, who is a licensed real estate agent; Tammy Pham (“Pham”), who worked for plaintiff Nguyen as an independent contractor; and Kham Tran (“Tran”), Ha’s cousin living in Vietnam. (SAC, ¶17.) Pursuant to VSM’s instructions, Ha and Pham contacted Mike Rohde (“Rohde”) for due diligence documents relating to the Subject Property, but Rohde did not cooperate. (Id.) In response to pressure from defendant Pau and other interested buyers for further due diligence documents, plaintiff Nguyen, Ha, Pham, and Stovall went to Vietnam to meet with VSM’s principals. (SAC, ¶18.)

On September 25, 2011, VSM’s principals insisted on being provided with the identities of the prospective buyers. (SAC, ¶19.) In reliance on his rights under the Listing Agreement, plaintiff Nguyen provided names of five potential buyers to VSM. (Id.) On September 26 – 27, 2011, plaintiff Nguyen, along with Ha, Tran, Pham, and Stovall, met with VSM’s principals in Saigon. (SAC, ¶20.) Among the VSM principals present were Be Tram, Cuu Nguyen (representing a silent but powerful partner), Ngan Tram (Be Tram’s son), and Hoa Tran (Be Tram’s younger son). (Id.) The VSM principals promised to have due diligence documents to plaintiff Nguyen within seven days and instructed plaintiff Nguyen to work directly with Cuu Nguyen in obtaining the due diligence documents. (Id.) After the meetings, VSM demanded information about the identities of the remaining potential buyers before releasing due diligence documents. (SAC, ¶21.)

On October 3, 2011, VSM requested plaintiff Nguyen release the remaining list of nine potential buyers and, in exchange, VSM would provide updated financial documents to plaintiff Nguyen. (SAC, ¶22.) Plaintiff Nguyen and his associates provided information regarding the remaining potential buyers, but VSM did not provide plaintiff Nguyen with updated financial documents. (Id.)

In the meantime, plaintiff Nguyen and M&M identified another potential buyer, Catalina Investment Company (aka The Irvine Company) (“Catalina”). (SAC, ¶23.) On or about October 17, 2011, Catalina signed a non-circumvent agreement with M&M and plaintiff Nguyen. (Id.)

On November 16, 2011, plaintiff Nguyen received a letter from Walter Merkle of Kay & Merkle (“Merkle”) claiming to represent VSM and purporting to terminate the Listing Agreement on the false basis that plaintiff Nguyen did not have a real estate broker’s license. (SAC, ¶24.) Plaintiff Nguyen reported this letter to Cuu Nguyen who assured plaintiff the letter was unauthorized. (Id.) Cuu Nguyen instructed plaintiff Nguyen to ignore the letter and continue working with VSM. (Id.) In reliance on Cuu Nguyen’s assurances coupled with the fact that VSM continued working with plaintiff Nguyen and his assistants, plaintiff Nguyen continued working on obtaining the sale of the Subject Property. (SAC, ¶25.)

At defendant Pau’s request, plaintiff Nguyen and M&M organized an international telephone conference call (“ITC”) for April 10, 2012 to allow Pau to speak directly with VSM members in Vietnam and confirm plaintiff as the listing agent because Pau had received communications from individuals unassociated with plaintiff who were soliciting Pau to purchase the Subject Property. (SAC, ¶26.) Before agreeing to participate in the ITC, defendant Pau demanded proof that the participants in the ITC were, in fact, authorized representatives of the owner of the Subject Property. (SAC, ¶27.) Stovall provided defendant Pau with business cards for the principals of VSM. (Id.) Plaintiff sent Pham to Vietnam to help set up the ITC and to translate during the ITC because VSM’s principals do not speak English. (SAC, ¶28.)

Before the scheduled ITC, defendant Pau induced Taughinbaugh to conditionally release Pau from the NCA by representing that “if the owners confirm to me that they have only authorized [M&M] to represent them and no other brokerage firm is involved, then I will work with you.” (SAC, ¶29.) Trusting Pau, Taughinbaugh conditionally released defendant Pau from the NCA without plaintiff Nguyen’s knowledge or authorization. (Id.) The ITC occurred on April 10, 2012 during which Be Tram confirmed VSM’s intent to sell the Subject Property and plaintiff Nguyen was the only agent with exclusive authority to sell the Subject Property on VSM’s behalf. (SAC, ¶¶30 – 31.) At the conclusion of the ITC, Pau expressed his satisfaction and stated his intent to prepare an offer to submit to M&M and plaintiff Nguyen to hand carry to Vietnam. (SAC, ¶31.) With Be Tram’s confirmation that plaintiff Nguyen (and sub-agent M&M) was the only listing agent, the terms of the conditional “release” were not met, thereby rendering it void. (SAC, ¶32.)

After the ITC, on April 27, 2012, Cuu Nguyen confirmed VSM would continue working with plaintiff Nguyen to complete the sale of the Subject Property to Pau and assured plaintiff would be entitled to the commission in the Listing Agreement. (SAC, ¶33.)

On May 15, 2012, defendant Pau represented to M&M that he would make an offer to purchase the Subject Property but needed more time to prepare the offer. (SAC, ¶34.) Without plaintiff Nguyen’s knowledge or involvement, defendant Pau hired his own broker, Efi Luzon, and involved his financial partner, Abu Dhabi Investment Authority (“ADIA”), to negotiate and finalize the purchase of the Subject Property directly with VSM in violation of the terms of the NCA. (SAC, ¶¶35 and 39.) In May 2012, VSM started dealing directly with Pau in circumventing plaintiff Nguyen as the listing agent. (SAC, ¶39.)

In or about May 2013, plaintiff learned that Pau had made an offer to buy the Subject Property directly from VSM and one of the conditions of the offer was a credit to Pau for the 6% commission VSM would save by not having to pay plaintiff and his associates. (SAC, ¶37.) Based upon this and other information, plaintiff Nguyen filed a complaint on May 6, 2013 against VSM for breach of contract and other causes of action in Santa Clara County Superior Court case number 1-13-CV-245854 (“Vallco Litigation”). (Id.)

To hide their wrongful acts from plaintiff Nguyen, Pau and ADIA formed one or more entities that would act as a mere shell, instrumentality, or conduit to purchase the Subject Property. (SAC, ¶40.) In June 2014, Pau formed Commercial Real Properties-CA 173 LLC (“CA 173 LLC”) to act as a straw buyer of the Subject Property. (Id.) In the same month, CA 173 LLC presented a letter of intent (“LOI”) to buy the Subject Property which Ngan Tram signed on behalf of VSM. (Id.) In July 2014, pursuant to the terms of the LOI between CA 173 LLC and VSM, ADIA deposited $116 million into escrow on behalf of CA 173 LLC. (SAC, ¶41.)

In or about October 2014, Pau or defendant Vallco Property Owner, LLC (“VPO”) purchased properties adjacent to the Subject Property for approximately $200 million. (SAC, ¶44.) Pau’s plan from the beginning was to purchase the Subject Property and adjacent properties in order to redevelop the entire Vallco Shopping District. (SAC, ¶¶44 – 45.)

As early as February 2012, before the ITC and during the non-circumvention period under Pau’s NCA with plaintiff and M&M, Pau opened escrow on the Subject Property. (SAC, ¶46.) Pau worked with M&M and plaintiff Nguyen in order to obtain contact with the owners of the Subject Property and deal with them directly. (Id.) After Be Tram learned of Pau’s identity as the potential buyer, he recruited plaintiff’s assistant to help carry out his scheme to deal directly with Pau to avoid payment of the commission to plaintiff and his associates. (SAC, ¶¶47 – 51.)

On July 3, 2012, Pau submitted an offer to buy the Subject Property directly to VSM. (SAC, ¶49.) For the two years that followed, Pau continued working with VSM. (SAC, ¶52.) When it appeared Pau’s master plan to purchase the entire Vallco Shopping District might collapse, Pau agreed to close the deal for a $116 million purchase price, no contingencies, and a quick closing. (Id.) The purchase and sale agreement was entered into on November 3, 2014 and the grant deed conveying the Subject Property to VPO was recorded on November 12, 2014. (SAC, ¶53.)

In the meantime, plaintiff joined Pau as a co-defendant in the Vallco Litigation. (SAC, ¶54.) Pau’s attorney aggressively sought Pau’s dismissal by filing a motion for sanctions. (Id.) In support of that motion, Pau made various false statements. (SAC, ¶¶56 – 59.) Trusting Pau would not lie under oath, plaintiff agreed to dismiss Pau from the Vallco Litigation without prejudice. (SAC, ¶55.)

On November 10, 2016, plaintiff Nguyen filed a complaint against Pau, individually and doing business as Sand Hill Property Company, Sand Hill Property Management, LLC, and VPO asserting causes of action for:

(1) Breach of Contract
(2) Breach of Implied Covenant of Good Faith and Fair Dealing
(3) Intentional Interference with Contractual Relations
(4) Intentional Interference with Prospective Economic Advantage
(5) Fraud-Deceit
(6) Violation of Business & Professions Code §17200, et seq.

On January 6, 2017, plaintiff Nguyen filed a first amended complaint (“FAC”) asserting the same six causes of action.

On March 30, 2017, defendants Pau, individually and doing business as Sand Hill Property Company (“SHPC”), Sand Hill Property Management, LLC, and VPO filed a demurrer to plaintiff Nguyen’s FAC.

On May 9, 2017, the court sustained, in part, and overruled, in part, the defendants’ demurrer to plaintiff Nguyen’s FAC.

On May 24, 2017, plaintiff Nguyen filed the operative SAC against Pau, individually and doing business as SHPC, and VPO. The SAC now asserts the following causes of action:

(1) Breach of Contract
(2) Breach of Implied Covenant of Good Faith and Fair Dealing
(3) Intentional Interference with Contractual Relations
(4) Intentional Interference with Prospective Economic Advantage
(5) Fraud-Deceit
(6) Quasi-Contract/ Unjust Enrichment
(7) Violation of Business & Professions Code §17200, et seq.
(8) Conspiracy to Commit Fraud, to Interfere with Contractual Relations and Interfere with Prospective Economic Advantage

On July 14, 2017, defendants Pau, individually and doing business as SHPC, and VPO filed an answer and a demurrer to the fifth and seventh causes of action in plaintiff Nguyen’s SAC. On September 26, 2017, the court issued an order overruling the demurrer to the fifth cause of action but sustaining, without leave to amend, the demurrer to the seventh cause of action.

On September 28, 2018, defendants Pau, individually and doing business as SHPC, and VPO filed the motion now before the court, a motion for summary adjudication of the first, second, third, fourth, and sixth causes of action in plaintiff Nguyen’s SAC.

I. Procedural violation.

As a preliminary matter, the court note that defendants Pau and VPO’s memorandum of points and authorities exceeds the page limitations. California Rules of Court, rule 3.1113, subdivision (d) states, in relevant part, “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” Defendants’ memorandum of points and authorities is 27 pages, exclusive of the table of contents and table of authorities. Defendants did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.1113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Defendants and their counsel are hereby admonished for this procedural violation. Any future failure by defendants to comply with the California Rules of Court or rules of Civil Procedure may result in the court’s refusal to consider defectively filed papers.

II. Defendants’ motion for summary adjudication of the first cause of action [breach of contract] in plaintiff Nguyen’s SAC is DENIED.

A. Party to the NCA/ Third Party Beneficiary.

Defendants move for summary adjudication of plaintiff Nguyen’s first cause of action for breach of the NCA by arguing, initially, that plaintiff Nguyen is not a party to the NCA. Normally, “someone who is not a party to [a] contract has no standing to enforce the contract or to recover extra-contract damages for wrongful withholding of benefits to the contracting party.” (Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.) Defendants proffer evidence that on or about August 11, 2011, Pau entered into a written “Confidentiality/ Registration Agreement” [NCA] with M&M. Nevertheless, defendants acknowledge plaintiff Nguyen’s allegation that he has standing to sue as a third party beneficiary to the NCA. (See SAC, ¶64.)

Civil Code section 1559 states, “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” In other words, “A person who is not a party to a contract may nonetheless have certain rights thereunder, and may sue to enforce those rights, where the contract is made expressly for her benefit.” (Mercury Casualty Co. v. Maloney (2002) 113 Cal.App.4th 799, 802 (Mercury).) “[A] third party beneficiary’s rights under the contract are not based on the existence of an actual contractual relationship between the parties but on the law’s recognition that the acts of the contracting parties created a duty and established privity between the promisor and the third party beneficiary with respect to the obligation on which the action is founded.” (Mercury, supra, 113 Cal.App.4th at p. 802.)

A third party should not be permitted to enforce covenants made not for his benefit, but rather to others. He is not a contracting party; his right to performance is predicated on the contracting parties’ intent to benefit him. The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement. The contracting parties must have intended to confer a benefit on the third party. It is not necessary for the third party to be specifically named in the contract, but such a party bears the burden of proving that the promise he seeks to enforce was actually made to him personally or to a class of which he is a member. In making that determination, the court must read the contract as a whole in light of the circumstances under which it was entered.
…
The fact that the contract, if carried out to its terms, would inure to the third party’s benefit, is insufficient to entitle him or her to demand enforcement. [Citation.] However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. [Citation.] Whether a third party is an intended beneficiary to the contract involves construction of the parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered. [Citation.]
(Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348 – 349.)
In Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233, the court held, “Generally, it is a question of fact whether a particular third person is an intended beneficiary of a contract. [Citation.] However, where, as here, the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently.” (Emphasis added.)

In moving for summary adjudication of the first cause of action, defendants contend plaintiff Nguyen is not a third party beneficiary as his name is not found anywhere in the NCA. Defendant Pau also declares that M&M was the only person/entity with home Pau intended to contract regarding the NCA. At the time that Pau entered into the NCA on August 10, 2011, Pau did not even know that plaintiff Nguyen existed, or that he claimed to have a brokerage connection to the Subject Property. Even so, the NCA, on its face, presents a question of fact whether a third person was an intended beneficiary. The NCA states, in part:

I, _____ of _____ hereby request receipt of the offering materials (the “Materials”) for the subject property, located in Cupertino, California (the “Property”), and acknowledge that the Materials are intended only for direct distribution to qualified potential purchasers by [M&M] and Newton Law Group (“Brokers”) on behalf of the Owner (“Owner”).

… [M&M] is authorized to represent Owner, through broker cooperation with Newton Law Group, for the purpose of effecting a sale of the Property, and all negotiations shall be conducted through [M&M] with the Purchaser. If Purchaser closes escrow on the Property in the next twelve (12) months, [M&M] and Newton Law Group will be compensated the agreed upon fee in the contract executed with the Owner on 8/2/2011 at the close of escrow.

… I agree that the Materials are for my information only and I … further agree to return the Materials to Brokers in the event I do not consummate a purchase of the Property by December 31, 2011.

(Emphasis added.)

The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract.

(Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. (1958) 160 Cal.App.2d 290, 297.)

Here, the very terms of the NCA require Pau, as promisor, to confer a benefit on not just M&M, but also on a third person, Newton Law Group, as the cooperating broker. This creates an evidentiary presumption that Pau intended to benefit Newton Law Group which conflicts with Pau’s declaration otherwise.

Defendants do not dispute plaintiff Nguyen’s allegation that he used Newton Law Group as a fictitious business name. Instead, defendants argue plaintiff Nguyen has never been authorized to conduct activities requiring a real estate broker’s license under the fictitious business name, Newton Law Group. Plaintiff Nguyen has registered several fictitious business names with the California Department of Real Estate, but has not registered Newton Law Group as one of those names. Defendants assert plaintiff Nguyen’s failure to register Newton Law Group as a fictitious business name would subject him to criminal prosecution. However, defendants cite no legal authority which would preclude plaintiff from enforcing the NCA as a third party beneficiary for failing to properly register his fictitious business name with the California Department of Real Estate.

B. Performance.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; emphasis added.) As a further basis for summary adjudication, defendants contend neither plaintiff Nguyen nor M&M performed their obligation under the NCA. According to defendants, the August 11, 2011 NCA obligated M&M to provide Pau with commercially reasonable, confidential documentation and information about the Subject Property (“offering materials”) no later than December 31, 2011. Despite Pau’s repeated requests, M&M never provided any such due diligence or offering materials to Pau, and plaintiff Nguyen admits that he didn’t either.

In opposition, plaintiff Nguyen contends the NCA does not create any obligation for either M&M or plaintiff to provide Pau with offering materials. As cited above, the NCA’s first paragraph is merely a request by Pau for said offering materials. On this point, the court agrees with plaintiff Nguyen’s assertion that the NCA does not impose any obligation on either M&M or Newton Law Group to actually provide offering materials. Thus, at the outset, defendants do not meet their initial burden with regard to this argument because defendants’ evidence does not substantiate their assertion that Newton Law Group and/or M&M had an obligation to perform.

C. Breach.

As a further basis for summary adjudication, defendant Pau argues he did not breach the NCA. According to the SAC, “Although Defendants promised in the agreement that Defendants would not deal with another broker within the 12-month period of the agreement, starting on May 8, 2012, or even before that date, pau started to work with agent Efi Luzon and ‘broker’ John Wynn on the purchase of the [Subject Property]. Utilizing Efi Luzon, Defendants conducted negotiations directly with the Mall owners in breach of the NCA provision that all negotiations be conducted through M&M. Through this wrongful conduct, Defendants breached the [NCA].” (SAC, ¶67.)

Defendant Pau proffers evidence that he did not work with Efi Luzon or John Wynn regarding the [Subject] Property any time before May 2012. However, in opposition, plaintiff Nguyen proffers evidence in opposition which conflicts. For instance, plaintiff Nguyen proffers evidence of an e-mail communication between Efi Luzon and Pau dated March 26, 2013 with the subject line, “Re: Vallco,” in which Efi Luzon states, in relevant part, “you have been involved in this with me for almost a year now and way before that ?” At the very least, this presents a triable issue of material fact.

D. Causation.

“An essential element of a claim for breach of contract are damages resulting from the breach. (Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 233, 68 Cal.Rptr.2d 31.) Causation of damages in contract cases requires that the damages be proximately caused by the defendant’s breach. (Ibid; Civ.Code, §§ 3300, 3301.)” (St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1060; italics original.) “‘The test for causation in a breach of contract … action is whether the breach was a substantial factor in causing the damages.’ [Citation.]” (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1103.) “[C]ausation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864; see also Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354—“the issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion.”

In the first cause of action, plaintiff alleges that as a result of defendants’ breach of the NCA, plaintiff “has suffered damages in the amount of $6,960,000.00,” which corresponds to the alleged 6% commission of the $116 million sale price of the Subject Property pursuant to the Listing Agreement. As a further separate basis for summary adjudication, defendants contend any breach of the NCA did not cause plaintiff to suffer the loss of commission. Instead, defendants proffer evidence that plaintiff lost the commission when VSM terminated the Listing Agreement by letter dated November 16, 2011 from VSM”S attorney, Walter Merkle (“Merkle”). Plaintiff received Merkle’s November 16, 2011 letter and understood VSM’s intent was to cancel the Listing Agreement.

On this point, the court could not identify any argument by plaintiff Nguyen in his memorandum of points and authorities in opposition. Plaintiff asserted several objections to the evidence cited by defendants in support. Plaintiff Nguyen’s objection, number 3, is overruled. The reference to exhibit H to the declaration of Douglas Marshall appears to be a typographical error and the correct reference is to exhibit G. Plaintiff Nguyen’s objection, number 18, is overruled. Exhibit V to the declaration of Douglas Marshall is attached, albeit not separated by an exhibit tab. Plaintiff Nguyen’s objection, numbers 19 and 37, are overruled.

Objections aside, plaintiff Nguyen nevertheless proffers evidence which would present a triable issue of material fact with regard to whether Merkle had authority to send the letter terminating the Listing Agreement. (See Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication, Fact No. 20.)

For the reasons stated above, defendants’ motion for summary adjudication of the first cause of action in plaintiff Nguyen’s SAC is DENIED.

III. Defendants’ motion for summary adjudication of the second cause of action [breach of implied covenant of good faith and fair dealing] in plaintiff Nguyen’s SAC is DENIED.

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Rest.2d Contracts, §205.) “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; see also CACI, No. 325.)

In moving for summary adjudication of this second cause of action, defendants contend a third party beneficiary is not entitled to recover for breach of the contractual covenant of good faith and fair dealing. However, as discussed above in section II(A), whether plaintiff is a third party beneficiary is a question of fact. Defendants also argue this claim fails because Pau did not engage in misconduct while the NCA was in existence. Again, as discussed above in section II(C), a triable issue of material fact exists.

Accordingly, defendants’ motion for summary adjudication of the second cause of action in plaintiff Nguyen’s SAC is DENIED.

IV. Defendants’ motion for summary adjudication of the third cause of action [intentional interference with contractual relations] in plaintiff Nguyen’s SAC is DENIED.

The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239; see also CACI, No. 2201.)

According to the SAC, defendants interfered with plaintiff Nguyen’s Listing Agreement with VSM. (See SAC, ¶¶76 – 77.) In moving for summary adjudication of the third cause of action, defendant Pau contends he did not have knowledge of the Listing Agreement and, therefore, did not engage in any intentional acts designed to induce a breach or disruption of the contractual relationship between plaintiff Nguyen and VSM. Defendant Pau proffers evidence that after several months of waiting for, and repeatedly requesting, information and documentation about the property from M&M; and after several months of not getting anything useful from them, Pau became concerned that [M&M] did not have the relationship with the owner VSM which [M&M] claimed to have. In late March/ early April 2012, Pau learned that an agent from a different brokerage (Dick Stoll of Kidder Mathews) might have the listing for the [Subject] Property instead of M&M. After learning about the possible Kidder Mathews listing, Pau thereafter renewed his requests with M&M for them to provide a copy of their supposed listing agreement with the owners VSM, so that he could see for himself whether or not they actually had the listing they claimed, whether it was an exclusive listing as they had claimed, etc. Each time Pau asked M&M to provide a copy of their supposed listing agreement, they refused; they apparently couldn’t or wouldn’t provide a copy of the same. At the time that Pau entered into the NCA on August 11, 2011, Pau did not even know that plaintiff Nguyen existed, or that he claimed to have a brokerage connection to the Subject Property. Until 2013, Pau did not even know that plaintiff was claiming to have a brokerage compensation agreement regarding the Subject Property.

It is this court’s opinion that defendant Pau has not met his initial burden. Defendant’s evidence does not disprove knowledge of the listing agreement. Instead, defendant’s own evidence establishes knowledge of a listing agreement. Defendant’s suspicion of the validity of the Listing Agreement is not enough to negate knowledge of its existence. Defendant’s denial of knowledge of plaintiff Nguyen’s identity is also insufficient to carry defendant’s initial burden. Defendant Pau acknowledges signing the NCA which, by its very terms, discloses the existence of the Listing Agreement between VSM, M&M, and the Newton Law Group. (See ¶8 and Exh. A to the Declaration of Peter Pau in Support of Motion for Summary Adjudication—“[M&M] is authorized to represent Owner, through broker cooperation with Newton Law Group, for the purpose of effecting a sale of the Property, and all negotiations shall be conducted through [M&M] with the Purchaser. If Purchaser closes escrow on the Property in the next twelve (12) months, [M&M] and Newton Law Group will be compensated the agreed upon fee in the contract executed with the Owner on 8/2/2011 at the close of escrow.” (Emphasis added.))

Defendant Pau argues additionally that the third cause of action fails because the Listing Agreement was only in effect until November 16, 2011 when Merkle sent a letter to plaintiff terminating the Listing Agreement. According to defendant Pau, he did not engage in any interference while the Listing Agreement was in effect. However, as discussed above, a triable issue of material fact exists with regard to whether Merkle had authority to terminate the Listing Agreement and whether defendant Pau engaged in any interference during the relevant time period.

As a further argument, defendant Pau contends plaintiff Nguyen’s pleading itself is defective because it only alleges acts of interference beginning in May 2012 which is six months after the termination of the Listing Agreement. Apart from the triable issues discussed above, this argument fails for the additional reason that the pleading is not as specific as defendant argues. Instead, the pleading alleges interference by defendants “starting on May 18, 2012, or even before that date.” (See SAC, ¶67; emphasis added. See also SAC, ¶48—“As early as May 18, 2012 or sooner…”)

Accordingly, defendants’ motion for summary adjudication of the third cause of action in plaintiff Nguyen’s SAC is DENIED.

V. Defendants’ motion for summary adjudication of the fourth cause of action [intentional interference with prospective economic advantage] in plaintiff Nguyen’s SAC is DENIED.

The elements for the tort of intentional interference with prospective economic advantage “are usually stated as follows: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea).)

In moving for summary adjudication of the fourth cause of action, defendants argue initially that there was no probability of future economic benefit after November 16, 2011 when Merkle terminated the Listing Agreement. Again, for the reasons discussed above, a triable issue of material fact exists with regard to whether Merkle had authority to terminate the Listing Agreement and whether defendant Pau engaged in any interference during the relevant time period.

Just as with the third cause of action, defendants argue the fourth cause of action fails because defendant Pau did not have knowledge of the relationship between plaintiff Nguyen and the owner of the Subject Property, VSM. As discussed above, the court is of the opinion that defendants do not carry their initial burden.

With regard to the third element of the cause of action, the California Supreme Court in Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal 4th 376, 393 (Della Penna) stated, “a plaintiff seeking to recover from an alleged interference with prospective contractual or economic advantage must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.” (See also Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152—“a plaintiff seeking to recover for interference with prospective economic advantage must also plead and prove that the defendant engaged in an independently wrongful act in disrupting the relationship. In this regard, ‘an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’”; see also Korea Supply, supra, 29 Cal.4th at pp. 1158 – 1159.)

In the SAC, plaintiff Nguyen alleges, “Defendants’ conduct was independently wrongful by some legal measure other than the fact of the interference itself because their actions constituted a breach of the NCA.” Defendants renew their argument from the first cause of action that Pau did not attempt to communicate with VSM prior to the termination of the NCA. As discussed above, a triable issue of material fact exists with regard to whether defendant Pau engaged in any interference during the relevant time period.

Finally, defendants also renew their argument from the first cause of action that they did not cause plaintiff Nguyen to suffer the loss of commission and that it was VSM’s termination of the Listing Agreement which caused plaintiff Nguyen to lose the commission. As discussed in section II(D) above, a triable issue of material fact exists.

Accordingly, defendants’ motion for summary adjudication of the fourth cause of action in plaintiff Nguyen’s SAC is DENIED.

VI. Defendants’ motion for summary adjudication of the sixth cause of action [quasi-contract/ unjust enrichment] in plaintiff Nguyen’s SAC is CONTINUED.

Plaintiff Nguyen’s sixth cause of action is entitled, “Quasi-Contract/ Unjust Enrichment,” and alleges, in part, “By demanding and receiving the approximately $7 million credit against the actual purchase price for the Mall for the commission owed to Plaintiff, Defendants, by their wrongful conduct, appropriated the commission rightfully owed to Plaintiff for their own gain and benefit.” (SAC, ¶104.)

In moving for summary adjudication, defendants rely on select portions of the court’s September 26, 2017 ruling with regard to defendants’ demurrer to the fifth and seventh causes of action to argue that plaintiff Nguyen has not adequately alleged a claim for restitution under an unjust enrichment theory. Specifically, defendants cite the following:

…paragraph 52 of the SAC which alleges, in relevant part, “Pau agreed to close the deal for a stated $116 million purchase price…. However, on information and belief, the actual purchase price for the Mall was $130 million because and VPO demanded two items of credit to close the purchase and sale, to which the Seller agreed. The first item was a rent credit in the amount of approximately $7 million, and the second item was a credit in the amount of approximately $7 million for the amount of the commission owed to Plaintiff, which Pau and VPO represented they would pay.”

This allegation remains insufficient to support a claim for restitution.

However, the court wrote this in addressing defendants’ demurrer to the seventh cause of action for violation of Business and Professions Code section 17200 (“UCL”) and whether plaintiff had alleged a proper claim for restitution since UCL plaintiffs are “generally limited to injunctive relief and restitution.’ ” (Korea, supra, 29 Cal.4th at p. 1144.) Since the court’s earlier ruling only specifically addressed plaintiff Nguyen’s seventh cause of action, it is not dispositive of the sixth cause of action.

Alternatively, defendants contend the factual basis for this claim of unjust enrichment, i.e., that defendants received a credit of $7 million at close of escrow for the commission owed to plaintiff Nguyen, simply is not true and that defendants did not receive a credit of $7 million (or any other amount) for the amount of the commission owed to plaintiff.

In opposition, plaintiff Nguyen contends there is a triable issue of material fact as to whether defendant received a credit of around $6,900,000 to pay plaintiff’s commission. Plaintiff Nguyen contends there is evidence of at least 10 drafts of an agreement between the seller and Pau and prior to the final agreement, the draft agreement(s) contained a provision for a $6,500,000 set aside to be deposited into escrow by seller at close of escrow to provide for the lawsuit (Vallco Litigation) for Plaintiff’s commission. Yet, plaintiff concedes this provision was omitted in the final agreement. Based on this concession, plaintiff’s evidence does not present a triable issue of material fact.

Plaintiff Nguyen argues additionally that further discovery is pending and asks the court to continue the hearing on this motion until the close of discovery. Code of Civil Procedure section 437c, subdivision (h) which states, in pertinent part, that, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”

“To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; internal punctuation omitted.)

However, “[i]t is not enough to ask for a continuance … in opposing points and authorities. The statute requires that the opposition be accompanied by affidavits or declarations showing facts to justify opposition may exist; or that such showing be made by an ex parte motion on or before the date the opposition is due.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:207.10, p. 10-87.) In Hill v. Physicians & Surgeons Exch. (1990) 225 Cal.App.3d 1, 7 – 8, the “pleadings contain[ed] no affidavit detailing facts to show the existence of evidence supporting her theory of coverage and the reasons why this evidence could not be presented at the time of the hearing.” “The purpose of the affidavit required by Code of Civil Procedure 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion.” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325 – 326.)

The opposing party’s declaration in support of a motion to continue the hearing should show the following:
• Facts establishing a likelihood that controverting evidence may exist;
• The specific reasons why such evidence cannot be presented at the present time;
• An estimate of the time necessary to obtain such evidence; and
• The specific steps or procedures the opposing party intends to utilize to obtain such evidence.

(Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:207.15, p. 10-88 citing Code Civ. Proc., §437c, subd. (h) and Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey), et al.)

A declaration in support of a request for continuance under section 437c, subdivision (h) must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]” [Citation.] “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” [Citation.] “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ [Citation.]

(Cooksey, supra, 123 Cal.App.4th at p. 254.)

Plaintiff’s counsel submits a declaration which states the reason a continuance is necessary is “due to the enormous volume of documents, deposition transcripts, and witnesses, and being a sole practitioner.” “A continuance is not mandatory where no declaration is submitted or the declaration fails to meet the above requirements. Nonetheless, the court must determine whether the party requesting the continuance has established good cause therefore. That determination is within the court’s discretion.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:208, p. 10-89 citing Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716; Cooksey, supra, 123 Cal.App.4th at pp. 253 – 254, et al.) “The court’s discretion, however, must be exercised liberally in favor of granting a continuance: ‘The interests at state are too high to sanction the denial of a continuance without a good reason.’” (Id. citing Frazee v. Seely (2002) 95 Cal.App.4th 627, 634; emphasis added.)

Factors the court may consider in deciding to continue include:
The length of time the case has been pending. [2 years, 1 month: Complaint filed November 10, 2016.]
The length of time the requesting party had to oppose the motion. [2 months: MSA filed September 28, 2018.]
The proximity of the trial date or the 30-day discovery cut-off before trial. [Trial set for May 13, 2019.]
Whether the continuance motion could have been made earlier. [Continuance made in conjunction with opposition to MSJ.]
Prior continuances for this purpose. [No prior requests for continuance.]
Whether the evidence sought is “essential” to the issue to be adjudicated. [Plaintiff seeks more information concerning the “true price of the mall and … plaintiff’s fee credited by the sellers.]
Death or serious illness of an attorney or party is normally good cause for granting a continuance. [Not applicable.]

(Id. at ¶10:208.1, p. 10-90.)

Since plaintiff is faced with a potentially dispositive motion, the court will allow plaintiff Nguyen an opportunity to conduct discovery to be able to fend off this motion, but limited to the sixth cause of action only. In light of the liberality in favor of granting continuances, plaintiff Nguyen’s request for continuance is GRANTED, again limited to the sixth cause of action. Defendants’ motion for summary adjudication of the sixth cause of action only is hereby continued to February 28, 2019 at 9:00 a.m. in Department 19. Plaintiff may file and serve a supplemental opposition up to 10 pages in length no later than February 14, 2018. A reply, if any, shall be filed and served no later than February 21, 2018.

34-2015-00174376

Marcella Crisan vs. State of California

Nature of Proceeding: Hearing on Demurrer to Plaintiffs’ Second Amended Complaint

Filed By: Garey, Meredith P.

Defendant Department of State Hospitals’ (“DSH”) demurrer to plaintiff’s Second Amended Complaint (“2AC”) is OVERRULED, as follows.

Factual Background

This action arises out of plaintiff’s employment with defendant DSH and its predecessor, Department of Mental Health (“DMH”). She commenced this action in 2014 in Butte County and on 7/22/2014, plaintiff filed a First Amended Complaint (“1AC”) which asserted two causes of action for disability discrimination and violation of the California Whistleblower Protection Act at Government Code §8547 et seq. (“CWPA”) based on her employer’s 2011 decision to require plaintiff to report to work in Sacramento rather than continue working from her home in Chico, which plaintiff insists was a reasonable accommodation for a back injury suffered in a 2001 car accident.

Although DSH was previously successful in obtaining summary adjudication of plaintiff’s original two causes of action, plaintiff was recently granted leave to amend to now allege causes of action under the Fair Employment & Housing Act (“FEHA”) for failure to accommodate disability and failure to engage in the interactive process. Plaintiff’s 2AC was filed on 11/13/2018, with a Notice of Errata on the following day.

Moving Papers. DSH now demurs to both causes of action in this 2AC on the ground they are time-barred. In particular, DSH contends that once plaintiff received her right-to-sue notice from the DFEH on 4/17/2013, she had just one year to file any and all of her claims under the FEHA but the new FEHA claims were not added until more than 5½ years after the 2013 right-to-sue notice. DSH further insists that the two new FEHA claims do not “relate back” to the First Amended Complaint (“1AC”) because the allegations in the 2AC do not arise from the same set of essential facts as were pled in the 1AC, which is confirmed by the fact plaintiff had to add “48 new separate facts to support her new causes of action” and this court’s own determination in connection with the earlier summary adjudication motion that the 1AC did not adequately allege facts necessary to support a claim for either failure to accommodate or failure to engage in the interactive process. (The court notes that DSH’s demurrer itself does not identify any claimed insufficiency of the factual allegations of the 2AC other than that the new causes of action are time-barred.)

Opposition. Plaintiff opposes the motion, arguing that the “relation back” doctrine does apply here since the causes of action alleged in the 2AC arise out of the same factual circumstances giving rise to the original complaint: Plaintiff had a disability and was accommodated but then suddenly she is no longer accommodated and suffers adverse employment actions. The failure to accommodate and failure to engage in the interactive process claims now asserted in the 2AC are not based on a new or different set of facts but are based on the same factual scenario giving rise to plaintiff’s original causes of action for disability discrimination and violation of the CWPA.

Analysis

According to recent published precedent, “Under the relation back doctrine, an amended complaint is deemed to have been filed at the time of the earlier complaint if the amended complaint ‘(1) rest[s] on the same general set of facts, (2) involve[s] the same injury, and (3) refer[s] to the same instrumentality…’” (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.4th 824, 841 (italics in original) [citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 409].) This court is easily persuaded that the two newly-added causes of action satisfy each of these three requirements as they are based on the same general set of facts, involve the same alleged injury (although the theory of liability is somewhat different but even then, still pursuant to the FEHA) and refers to

the same instrumentality which caused plaintiff’s alleged injury and damages.

The present case is clearly distinguishable from Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, where the Second District Court of Appeal affirmed the trial court’s conclusion that the relation back doctrine did not apply to the plaintiffs’ amended complaint against their insurer because their original complaints were entirely devoid of factual allegations and otherwise failed to meet California’s minimal fact-pleading requirements.

Consequently, the court finds that the relation back doctrine is applicable to the causes of action now asserted in the 2AC and the mere fact that plaintiff added new factual allegations in order to satisfy the unique prima facie elements for the new causes of action does not, without more, preclude application of the doctrine here.

Conclusion

For the reasons explained above, DSH’s demurrer to the 2AC must be and hereby is overruled.

If not already done, DSH to file and serve its answer to the 2AC no later than 12/28/2018.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 21 34-2015-00174376

Marcella Crisan vs. State of California

Nature of Proceeding: Motion to Strike

Filed By: Garey, Meredith P.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of paragraphs of the amended complaint will be addressed at the hearing. ***

Defendant Department of State Hospitals’ (“DSH”) motion to strike portions of plaintiff’s Second Amended Complaint (“2AC”) is GRANTED IN PART and DENIED IN PART, as follows.

Factual Background

This action arises out of plaintiff’s employment with defendant DSH and its predecessor, Department of Mental Health (“DMH”). She commenced this action in 2014 in Butte County and on 7/22/2014, plaintiff filed a First Amended Complaint (“1AC”) which asserted two causes of action for disability discrimination and violation of the California Whistleblower Protection Act at Government Code §8547 et seq. (“CWPA”) based on her employer’s 2011 decision to require plaintiff to report to work in Sacramento rather than continue working from her home in Chico, which plaintiff insists was a reasonable accommodation for a back injury suffered in a 2001 car accident.

Although DSH was previously successful in obtaining summary adjudication of plaintiff’s original two causes of action, plaintiff was recently granted leave to amend to now allege causes of action under the Fair Employment & Housing Act (“FEHA”) for failure to accommodate disability and failure to engage in the interactive process. Plaintiff’s 2AC was filed on 11/13/2018, with a Notice of Errata on the following day.

Moving Papers. DSH now moves to strike a number of allegations from the 2AC on the ground they improperly relate only to those causes of action which were recently disposed of via summary adjudication (especially the CWPA claim) and/or are otherwise false, irrelevant or improper.

Opposition. Plaintiff opposes, arguing that she may permissibly include all factual allegations which support her new causes of action.

Analysis

The motion to strike is granted as to all allegations identified in DSH’s notice of motion except for Paragraphs 19, 21, 23, 25, 28, 34, 37, 38, 40 and 41.

If not already done, DSH to file and serve its answer to the 2AC no later than 12/28/2018.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Case Number: BC667570 Hearing Date: December 14, 2018 Dept: 2

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions and for Monetary Sanctions against Plaintiff, David Asch, and his Counsel of Record

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions and for Monetary Sanctions against Plaintiff, David Asch, and his Counsel of Record, filed on 11/16/18, is GRANTED. Cal. Code Civil Procedure §2023.010. The Court imposes an issue sanction against Plaintiff to preclude any evidence of physical injury suffered by Mr. Asch, given his refusal to proceed with an examination of his injuries, which is permitted by statute. There does not appear to be sufficient time to compel his appearance at another IME, given that trial is scheduled for 1/7/19.

Any party may demand a physical or mental examination. Cal. Code Civ. Proc. § 2032.020. Plaintiff has not offered any reasonable justification for his refusal to proceed with the examination because Dr. Robert Klapper had his assistant take Plaintiff’s history.

Defendants’ Notice of IME clearly advised Plaintiff that the examination would consist of taking a history, among other things, and would be consistent with “the practice of orthopedics in Southern California” including procedures and tests routinely performed by physicians examining patients for orthopedic conditions. Motion, Ex. A, 2:8-13.

Plaintiff did not object to the notice, or demand that no other personnel be involved in his examination, or seek a protective order preventing such involvement.

Plaintiff claims it is an invasion of privacy for another person to take his history. Opposition, 6:19. However, the privacy protection is not absolute. Plaintiff waives his right to privacy by placing his orthopedic injuries at issue by filing this lawsuit. Vinson v. Superior Court, 43 Cal.3d 833, 839 (1987).

The statute governing the conditions of the examination require that the examination not include “any diagnostic test or procedure that is painful, protracted, or intrusive.” Cal. Code Civil Procedure § 2032.220(a) (1). Plaintiff did not object to the taking of his history and has not specifically described why a nurse’s involvement is so intrusive as to warrant avoiding the entire examination.

Defendants are entitled to sanctions for Plaintiff’s failure to submit to an authorized method of discovery without substantial justification, which is discovery abuse. Cal. Code Civil Procedure § 2023.010(d). Issue sanctions may be imposed for discovery misuse. Cal. Code Civil Procedure § 2023.030(b).

The Court also imposes monetary sanctions of $1,625, against Plaintiff, David Asch, and his counsel of record, Citywide Law Group. Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions against Plaintiff, Brook Glaser, and for Monetary Sanctions against Plaintiff, Brook Glaser, and his Counsel of Record

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions against Plaintiff, Brook Glaser, and for Monetary Sanctions against Plaintiff, Brook Glaser, and his Counsel of Record, filed on 11/9/18, is GRANTED. Cal. Code Civil Procedure §2023.010.

Mr. Glaser’s refusal to comply with the court’s order of 10/29/18 constitutes discovery abuse under Cal. Code Civil Procedure §2023.010 for which terminating sanctions are ordered pursuant to §2023.030(d). The claims alleged in the complaint on behalf of Brook Glaser are dismissed.

On 10/29/18, the court GRANTED Defendants’ motion to compel Mr. Glaser to appear for a deposition within seven days, by November 5, 2018. The parties agreed to 11/2/18 for the deposition.

Defendants are permitted by statute to record the deposition by audio or video technology. Cal. Code Civil Procedure § 2025.220(a)(5).

Prior to the Court’s order compelling Mr. Glaser to appear, Defendants served a Notice of Taking Deposition on 6/22/18, which included a Demand for Production of Documents and indicated Defendants’ intent to record by video tape. Motion Ex. A, 2:1-5. Plaintiff did not appear. Motion, Ex. B. On 10/29/18, the Court granted Defendants’ motion to compel.

Defendants then gave notice to Mr. Glaser to appear for his deposition on 11/2/18. Motion, Ex. C. Plaintiff appeared with an objection to the request for production of documents and the use of the videographer. Motion, Ex. D. The record reflects Plaintiff’s counsel refused to proceed because the Court’s order did not mention anything about a videographer or about documents being produced. Motion, Ex. E, 3:8-11.

Mr. Glaser was always on notice of the Request for Production of Documents attached to the Notice as well as Defendants’ intent to use a videographer since the first Notice of Taking Deposition, Motion, Ex. A. Plaintiff did not object to that notice; Plaintiff failed to appear. The Court ordered Plaintiff to appear for his deposition as duly noticed by Defendants.

Defendants’ essentially served the identical Notice of Taking Deposition on Plaintiff for the 11/2/18 deposition. His new objections to the identical notice that were never raised before are not made in good faith. Mr. Glaser did not file an opposition to this motion to establish substantial justification for his refusal to comply with the Court’s order.

Mr. Glaser’s refusal to comply with the Court’s order is a misuse of the discovery process for which terminating and monetary sanctions are warranted.

Accordingly, the Court imposes monetary sanctions of $1,625.00 against Plaintiff, Brook Glaser, and his counsel of record, Citywide Law Group, for misuse of the discovery process. Cal. Code Civil Procedure §2023.030(a). Such sanctions are payable within thirty (30) days

Moving party is ordered to give notice.

Case Number: BC673782 Hearing Date: December 14, 2018 Dept: 4

Motion to Dismiss Action for Failure to Obey Court’s Order

The court considered the motion. No opposition was filed.

On August 25, 2017, plaintiffs Luis Carlos Santos Ruiz and Helen Nohemy Palenciacano filed a complaint against defendant Chelsea Nicole Didier for motor vehicle negligence based on a February 7, 2016 collision.

Trial is set for February 25, 2019.

On July 19, 2018, the court granted defendant’s motions to compel responses and motion for order establishing admissions as to plaintiff Luis Santos Ruiz.

On October 26, 2018, plaintiffs filed a request for dismissal as to plaintiff Palenciacano’s complaint.

Defendant requests that the court impose a terminating sanction against plaintiff Ruiz for plaintiff’s failure to comply with the court’s order dated July 19, 2018. Defendant also requests additional monetary sanctions in the amount of $433.50.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP §2025.450(h) (depositions); §2030.290(c) (interrogatories); §2031.300(c) (demands for production of documents). CCP §2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP §2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

On July 19, 2018, the court ordered plaintiff Ruiz to serve verified responses to defendant’s form interrogatories (sets one and two), special interrogatories (set one), and demand for inspection and production of documents (sets one and two), within 20 days. The court deemed admitted the truth of the matters in defendant’s Requests for Admission (set one). Plaintiff Ruiz was ordered to pay a monetary sanction in the amount of $659.38 within 20 days.

According to defense counsel, plaintiff failed to serve verified discovery responses and to pay sanctions.

Whether plaintiff complied with the court’s order to pay monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions¿should be imposed, and the court has not considered that factor in making its determination. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610, 615.¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq. Id. at 615.

The court finds that plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s July 19, 2018 order to serve verified discovery responses. CCP §§2023.010(g), 2023.030. The court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against plaintiff pursuant to CCP §2023.030(d).

The motion is GRANTED.

The court orders that the complaint against defendant is dismissed. CCP §2023.030(d)(3). The court denies plaintiff’s request for additional monetary sanctions because terminating sanctions are adequate.

Defendant is ordered to give notice of this ruling.

Case Number: BC606390 Hearing Date: December 19, 2018 Dept: 3

FELINE BUTCHER,

Plaintiff(s),

vs.

MARSHALL HERRIN, ET AL.,

Defendant(s).

Case No.: BC606390

[TENTATIVE] ORDER GRANTING UNOPPOSED MOTIONS TO COMPEL

Dept. 3

1:30 p.m.

December 19, 2018

Defendant propounded form interrogatories, special interrogatories, RPDs, and a demand for statement of damages on Plaintiff on 12/12/17. Defendant attempted to meet and confer, but no responses have been served. At this time, Defendant moves to compel responses to the outstanding interrogatories and RPDs and moves to compel a response to the request for a statement of damages; he also seeks imposition of sanctions.

The motions to compel are granted. Plaintiff is ordered to respond to all of the outstanding discovery, without objections, and serve a statement of damages within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b), 425.11(b).

Defendant seeks sanctions in connection with the motion. Sanctions are mandatory. §§2023.010(f), (h), 2030.290(c), 2031.300(c). Defendant seeks sanctions in the amount of $235/motion, and Defense Counsel’s declarations in support of the fully support imposition of sanctions in the amount sought. Sanctions are sought and imposed against Plaintiff and her attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through his attorney of record, in the total amount of $940, within twenty days.

Defendant is ordered to give notice.

Case Number: BC680873 Hearing Date: December 19, 2018 Dept: 3

QUENCE STEEN,

Plaintiff(s),

vs.

LONG BEACH PUBLIC TRANSPORTATION COMPANY, ET AL.,

Defendant(s).

CASE NO: BC680873

[TENTATIVE] ORDER GRANTING DEFENDANT’S UNOPPOSED MOTIONS TO COMPEL

Dept. 3

1:30 p.m.

December 19, 2018

Defendant propounded form interrogatories, special interrogatories, and RPDs on Plaintiff on 4/16/17. To date, despite an attempt to meet and confer, Plaintiff has not served responses. Notably, during the meet and confer process, Plaintiff provided Defense Counsel with a new address, and Defense Counsel re-served the subject discovery at the new address on 10/30/18. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within fifteen days. CCP §§2030.290(a),(b), 2031.300(a),(b).

Sanctions are mandatory. §§2030.290(c), 2031.300(c). Defendant seeks sanctions in the amount of $1840. Defense Counsel bills at the rate of $160/hour. The Court awards two hours to prepare the form discovery motion. The Court awards three hours of appearance time. The Court therefore awards a total of five hours of attorney time at the rate of $160/hour, for a total of $800 in attorneys’ fees.

Sanctions are sought and imposed against Plaintiff, in pro her; he is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $800, within twenty days.

Defendant is ordered to give notice.

Case Number: BC611050 Hearing Date: December 19, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

MARIA S. BECERRA,

Plaintiff,

v.

CALABEE’S INC.,

Defendant.

Case No.: BC611050

Hearing Date: November 28, 2018

[TENTATIVE] order RE:

defendant’s motion for Terminating Sanctions; MONETARY SANCTIONS

Defendant Calabee’s Inc (“Defendant”) has filed a motion for terminating sanctions against Plaintiff Maria S. Becerra (“Plaintiff”) due to Plaintiff’s failure to obey this Court’s order of July 25, 2018, compelling Plaintiff to provide verified responses, without objections, to Defendant’s form interrogatories and requests for production. The Court previously considered this motion on November 28, 2018, and continued it to this date for Defendant to demonstrate that it properly served notice of the Court’s order of July 25, 2018, on Plaintiff. Defendant has done so. The motion is granted.

When a party willfully disobeys a discovery order, the court has discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) In this case, Defendant has provided sufficient evidence to demonstrate that Plaintiff has had notice of this Court’s order of July 25, 2018. (See Declaration of Brenda Smith re: Proof of Service in Support of Motion for Terminating Sanctions.) Plaintiff has still not responded to Defendant’s discovery, as this Court ordered her to do on July 25, 2018. Nor has Plaintiff opposed this motion or otherwise provided evidence that would demonstrate her failure to comply with the Court’s order was inadvertent. Therefore, the Court concludes that Plaintiff cannot demonstrate that her failure to respond to Defendant’s discovery was unintentional. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.)

Terminating sanctions are a harsh penalty, but Defendant has demonstrated that it cannot achieve Plaintiff’s compliance with her discovery obligations and this Court’s orders through lesser sanctions. The Court has considered lesser sanctions, such as monetary sanctions, to enforce compliance with the Court’s order of July 25, 2018. However, given this record, the Court believes lesser sanctions would be futile, so the Court has no choice but to grant Defendant’s motion.

Conclusion and Order

Defendant’s request for terminating sanctions is granted. Plaintiff’s complaint is dismissed. Defendant’s request for monetary sanctions is denied. Defendant is ordered to provide notice of this order and file proof of service of such within ten days.

DATED: December 19, 2018 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC707510 Hearing Date: December 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: MOTION TO COMPEL DEFENDANTS’ RESPONSES TO DISCOVERY AND DEEM ADMITTED REQUESTS FOR ADMISSIONS; MOTION GRANTED

On May 23, 2018, Plaintiff California Fair Plan (“Plaintiff”) filed this action against Defendants Joey Aaron Duarte and Jose Gastelum Jr. (collectively, “Defendants”) for motor vehicle and general negligence relating to a June 25, 2016 automobile accident. On August 21, 2018, Plaintiff served Form Interrogatories, Request for Production of Documents, and Requests for Admissions on each defendant. (Declaration of Cynthia Farias, ¶ 2.) After no responses were received, Plaintiff sent a meet and confer letter to defense counsel. (Farias Decl., ¶ 3.) Plaintiff’s counsel spoke with defense counsel’s secretary and asked that defense counsel call her back to meet and confer. (Farias Decl., ¶ 4.) To date, no responses have been received. (Farias Decl., ¶¶ 6, 7.) Plaintiff moves to compel Defendants’ responses and to deem admitted requests for admissions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code of Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code of Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code of Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)

The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code of Civ. Proc., § 2033.280, subd. (c).)

Defendants filed no oppositions to these Motions and it is undisputed that they failed to serve timely responses to Plaintiff’s discovery requests. Accordingly, the Motions to compel Defendants’ responses to Plaintiff’s Form Interrogatories and Requests for Production are GRANTED. Each defendant is ordered to serve verified responses, without objection, to Plaintiff’s discovery requests within twenty (20) days of the date of this Order.

The Motion to deem admitted requests for admissions is GRANTED.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code of Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code of Civ. Proc., § 2033.280, subd. (c).)

Plaintiffs’ request for monetary sanctions is GRANTED and imposed against Defendant and his attorney of record, jointly and severally, in the reduced amount of $1,140.00 for three hours at Plaintiffs’ counsel’s hourly rate of $350.00 and $360.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Case Number: BC717026 Hearing Date: December 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT UBER TECHNOLOGIES, INC.’S MOTION FOR PROTECTIVE ORDER; MOTION GRANTED

On August 9, 2018, Plaintiff Alida Rodriguez (“Plaintiff”) filed this action against Defendants Mesfin Fesasso (“Fesasso”) and Uber Technologies, Inc. (“Uber”) for motor vehicle negligence relating to a May 13, 2017 automobile accident. Fesasso was driving when he attempted a left-hand turn into the path of Plaintiff’s vehicle, which was driven by her husband. Plaintiff contends Uber is vicariously liable for Fesasso’s alleged negligence.

On September 17, 2018, Plaintiff served written discovery requests on Uber. (Declaration of Tiffany Rouhi, ¶ 5.) Uber’s counsel advised Plaintiff’s counsel that it would not produce confidential documents unless the parties stipulated to a protective order. (Rouhi Decl., ¶ 6.) The parties met and conferred, but could not reach an agreement. (Rouhi Decl., ¶¶ 7, 8.) Uber moves for a protective order.

Where interrogatories are propounded, a demand for inspection or production is made, or request for admissions is made, the responding party may promptly move for a protective order and the motion shall be accompanied by a meet and confer declaration in compliance with Section 2016.040. (Code of Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), 2033.080, subd. (a).)

The court, for good cause shown, may make an order that justice requires to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. A protective order may include, but is not limited to, an order that: (1) the set of requests or particular requests in the set need not be answered at all; (2) that the number of requests is unwarranted; (3) that the time specified to respond to the requests be extended; (4) that a trade secret or other confidential research not be admitted or be admitted only in a certain way; or (5) that some or all of the answers to requests be sealed and thereafter opened only on order of the court. (Code of Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), 2033.080, subd. (b).)

If the motion is denied in whole or in part, the court may order that the responding party provide the discovery against which protection was sought on terms and conditions that are just. (Code of Civ. Proc., §§ 2030.090, subd. (c), 2031.060, subd. (c), 2033.080, subd. (c).)

Plaintiff’s request for documents seeks records relating to Fesasso’s location, trip details, and app status on the date of the incident. Uber argues this information constitutes trade secret, as it satisfies all the prongs of the test enumerating in In re Providian Credit Card Cases, because: (1) the information regarding the data, operation, and use of the Uber App is secret; (2) Uber derives economic value from the information; (3) Uber has made reasonable efforts to maintain the secrecy of the information; and (4) the disclosure of the information would damage Uber. (Declaration of Andrew Magana, ¶¶ 12-14.)

Uber argues a protective order is necessary to protect trade secrets and other confidential proprietary information. Specifically, Uber argues information regarding the operation and use of the Uber App is a trade secret and confidentiality is essential for Uber’s continued success. (Magana Decl., ¶¶ 5, 7, 13-14, 16-18, 20.) Further, disclosure of documents and testimony regarding tip receipts, app status data, and incident reports concerning Fesasso would implicate confidentiality and privacy rights, as well as identify operating procedures that could be used by competitors. (Magana Decl., ¶ 19.) Uber states all newly hired employees are required to sign a Confidential Information and Invention Assignment Agreement to guard trade secrets and information.

Uber argues the proposed protective order is narrowly tailored and modeled after the Court’s model protective order. It would apply to confidential technical, sales, marketing, policy, personal, financial, or other commercially competitive sensitive information contained in both documents and testimony given. The proposed protective order also provides a procedure for challenging designations.

Plaintiff filed an untimely opposition, but the Court exercises its discretion to consider it. Plaintiff contends Uber unnecessarily filed this Motion for protective order, as the parties were engaged in good faith negotiations regarding the issue of privileged materials. Plaintiff argues she does not intend to disseminate or publicize Uber’s internal policies, the inner workings of its App, or matters relating to its drivers. Plaintiff argues Uber exaggerates its need for protection from competitors.

However, the “issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corporation v. Superior Court (1995) 39 Cal.App.4th 584, 588, 591.) The Court finds Uber has demonstrated good cause for the requested protective order. Uber does not seek to prevent disclosure of the requested discovery; rather, it seeks to limit those individuals who receive confidential materials to the parties, attorneys and their employees, experts, court reporters, and other designated persons, and seeks nondisclosure agreements. As Plaintiff states she does not intend to publicize said confidential information, there should be no issue in complying with the protective order.

Plaintiff requests that the Court clarify the definition of “privilege.” Uber has stated that the privileged material which it refers contains or is a trade secret (Motion, 8:1-8.) However, it does not appear Uber seeks to assert this privilege to prevent disclosure. Rather, Uber objects to this information being “disclosed outside this litigation.” (Motion, 8:26-28.) To the extent Uber does seek to assert privilege to prevent disclosure (on grounds of attorney work product or attorney-client privilege), Uber would be required to produce a privilege log in the regular course of discovery.

Accordingly, the Motion for protective order (Exh. N) is GRANTED.

Moving party to give notice.

Case Number: BC596220 Hearing Date: December 27, 2018 Dept: 47

Jerry San Martin v. County of Los Angeles

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff Jerry San Martin

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was discriminated against and retaliated against for requesting reasonable accommodations for his physical disability (Carpal Tunnel Syndrome) and for filing a Workers Compensation Claim.

Defendant County of Los Angeles moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendant County of Los Angeles’ motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is GRANTED as to Issue No. 1 re: the first cause of action, Issue No. 2 re: the second cause of action, Issue No. 5 re: the fifth cause of action and Issue No. 6 re: the sixth cause of action, and DENIED as to Issue No. 3 re: the third cause of action and Issue No. 4 re: the fourth cause of action.

DISCUSSION:

Request for Judicial Notice

Defendant’s request that the Court take judicial notice of the proposed findings of Fact, Conclusions of Law and Recommendation of the Los Angeles County Civil Service Commission Case No: 14-240 is GRANTED. The Court may take judicial notice of the records of a civil service commission. Social Services Union v. City (1991) 234 Cal.App.3d 1093, 1098, fn. 3.

Plaintiff’s Evidentiary Objections

Plaintiff’s single evidentiary objection to all Declarations and Affidavits submitted in support of Defendant’s MSJ/MSA is OVERRULED. Plaintiff does not demonstrate the ground for objections to any particular portion of the challenged evidence. Moreover, Plaintiff refers to a “Ms. F’ without indicating who “Ms. F’ happens to be, nor why her input is relevant.

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c (q), the Court only rules upon objections asserted against evidence that the Court deems to be material to the disposition of this motion, as follows:

Declaration of Jerry San Martin

No. 2: SUSTAINED. Lack of foundation.

No. 3: SUSTAINED. Lack of foundation.

No. 4. : SUSTAINED. Lack of foundation; lack of personal knowledge; improper opinion testimony.

No. 5: SUSTAINED. Improper opinion testimony.

No. 6: SUSTAINED. Lack of foundation; lack of personal knowledge; improper opinion testimony.

No. 7: SUSTAINED. Improper opinion testimony.

No. 8: OVERRULED. Sufficient foundation.

No. 9: SUSTAINED. Lack of foundation; lack of personal knowledge; improper opinion testimony.

No. 10: OVERRULED. Sufficient foundation; personal knowledge.

No. 11: SUSTAINED. Lack of foundation; lack of personal knowledge.

No. 12: SUSTAINED as to whether Defendant lost or misplaced form. Lack of foundation; lack of personal knowledge.

No. 13: SUSTAINED. Lack of foundation; lack of personal knowledge.

No. 14: SUSTAINED. Lack of foundation; improper opinion testimony.

No. 15: SUSTAINED. Lack of foundation; improper opinion testimony.

No. 16: OVERRULED. Sufficient foundation; personal knowledge; not improper expert opinion.

No. 17: OVERRULED. Sufficient foundation; personal knowledge; not improper expert opinion.

No. 18: OVERRULED. Sufficient foundation; personal knowledge; not improper opinion.

No. 19: OVERRULED. Sufficient foundation; personal knowledge; not improper opinion.

No. 20: OVERRULED. Sufficient foundation; personal knowledge; not improper opinion.

No. 21: SUSTAINED. Improper opinion.

No. 22: SUSTAINED. Lack of foundation; lack of personal knowledge.

No. 23: OVERRULED. Goes to weight.

No. 24: OVERRULED. Sufficient foundation.

No. 25: OVERRULED. Sufficient foundation.

No. 26: SUSTAINED. Lack of foundation; improper opinion.

No. 27: OVERRULED. Sufficient foundation; not improper opinion; goes to weight.

No. 28: OVERRULED. Sufficient foundation; not improper opinion; goes to weight.

No. 29: OVERRULED. Sufficient foundation; sufficient personal knowledge; not improper opinion; goes to weight.

No. 30: OVERRULED. Sufficient foundation; personal knowledge (pertains to what his stated in his complaint).

No. 31: SUSTAINED. Lack of foundation; lack of personal knowledge; improper opinion.

No. 32: OVERRULED. This can be remedied by an actual signature by Plaintiff if necessary.

Declaration of Armis Almaguera

No. 33: OVERRULED. Defendant has failed to demonstrate that the entire declaration is inadmissible.

Motion For Summary Judgment

As discussed below, Defendant has not demonstrated that it is entitled to prevail as to each cause of action asserted against it. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion For Summary Adjudication

As an initial matter, the Court expresses frustration with both parties’ method of dumping a morass of “facts” upon the Court, instead of making an effort to cut to the chase. The Court doubts that each (or even a majority) of the 253 facts set forth in Defendant’s separate statement are truly material. Likewise, Plaintiff’s opposing separate statement is an exercise in redundancy.

Further, Plaintiff submits “Additional Material Facts” without specifying whether each of these facts is actually disputed or undisputed. Typically, parties who oppose summary judgment motions note that there are “additional disputed material facts” which defeat such a motion. See CCP § 437c (b)(3) [“The opposition papers shall include a separate statement . . . The statement shall also set forth plainly and concisely any other material facts the opposing party contends are disputed.”][1] (Emphasis added.) In this case, the Court is unclear as to which of these additional facts are disputed or not, or are even actually “material.” Indeed, the vast majority of these cited facts are clearly undisputed. Be that as it may, the Court will assume that several of these additional facts are disputed. The Court addressed below which, if any, of the evidence in support of these additional facts raise triable issues that preclude summary adjudication.

1. Issue No. 1: “First Cause of Action of the Complaint for ‘Disability Discrimination (Cal. Govt. Code § 12900 et seq.)’ on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the first cause of action (MSJ, Page 14:22-23), Defendant argues that Plaintiff cannot show that he was not allowed to take medical leave or that he was not provided with ergonomic equipment in a timely manner. To the extent that the first cause of action is based on these alleged failures, they are more appropriately asserted as a failure to participate in good faith interactive process (third cause of action) and failure to reasonably accommodate claim (fourth cause of action). The motion for summary adjudication as to the first cause of action is GRANTED to the extent it is based upon the failure to participate in good faith interactive process and failure to reasonably accommodate Plaintiff’s disability.

A Court may summarily adjudicate distinct wrongful acts which were combined into one claim:

In our judgment the clearly articulated legislative intent of section 437c, subdivision (f), is effectuated by applying the section in a manner which would provide for the determination on the merits of summary adjudication motions involving separate and distinct wrongful acts which are combined in the same cause of action. To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication. Accordingly, we hold that under subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.

Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852-55.

As to the first cause of action (MSJ, Page 19:19), Defendant argues that Plaintiff cannot demonstrate pretext. The Court will examine this contention as to Plaintiff’s claim that he was terminated based upon his disability, alleged to be Carpel Tunnel Syndrome. Complaint, ¶ 35.

FEHA provides, in relevant part, that “[i]t is an unlawful employment practice … . [¶] (a) For an employer, because of the … physical disability [or] medical condition … of any person, to refuse to hire or employ the person … or to bar or to discharge the person from employment … .” (§ 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925–926 [70 Cal. Rptr. 3d 382, 174 P.3d 200].) FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer’s intentionally discriminatory act against an employee because of his or her disability (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer’s facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (referred to as disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128–129 [33 Cal. Rptr. 3d 287], disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [186 Cal. Rptr. 3d 826, 347 P.3d 976].) In opposing SCPMG’s motion for summary judgment, Featherstone asserted only disparate treatment discrimination.

[*1161]

To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) [ ]he suffers from a disability, (2) [ ]he is otherwise qualified to do [his] job, (3) [he] suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (See Guz, supra, 24 Cal.4th at p. 355.)

Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1160-66.

Plaintiff alleges that he was terminated on February 13, 2015. Complaint, ¶ 25. Defendant presents evidence that Plaintiff was terminated for legitimate, non-discriminatory reasons, i.e., that he engaged in misconduct which justified termination:

An employer moving for summary judgment on a FEHA cause of action may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [128 Cal. Rptr. 2d 660]; see Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 356–357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150 [65 Cal. Rptr. 2d 112].) Once the employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 [35 Cal. Rptr. 2d 181]; accord, Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156 [106 Cal. Rptr. 2d 480]; see also Guz, at p. 357.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, at p. 361; see [*592] also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098 [38 Cal. Rptr. 3d 240] [if a defendant employer’s motion for summary judgment “relies in whole or in part on a showing of nondiscriminatory reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse action]. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred”].)

Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591-92.

Defendant presents evidence of an accumulation of Plaintiff’s job-related misconduct over the years which justified progressive discipline culminating in termination.

¿ On April 12, 2002, Plaintiff was suspended for 5 days without pay for omitting essential information concerning a prior arrest on his employment form and failing to follow County instructions, rules and regulations. UF No. 3; Counts Decl., ¶ 4; Exh. 1.

¿ On April 11, 2003, Plaintiff was suspended for 10 days without pay for discourtesy toward a Division Chief, refusal to act as directed and failure to follow instructions. UF No. 4; Counts Decl., 5; Exh. 2. Plaintiff was preauthorized for a doctor’s visit, but used the time to go to see Division Chief Bill Reyes without an appointment. He demanded to see Reyes and refused to leave when he was directed to go to his doctor’s appointment, and did not leave until security was about to be called. UF No. 5; Counts Decl., ¶ 5.

¿ On October 5, 2006, Plaintiff was reprimanded in writing for discourtesy toward his supervisor. UF No. 6; Counts Decl., ¶ 6; Exh. 3. Plaintiff raised his voice in an intimidating and irate manner during a discussion of his work performance based on a client’s complaint. UF No. 7; Counts Decl., ¶ 6; Exh. 3.

¿ On March 28, 2008, Plaintiff was suspended for 10 days without pay for his inappropriate sexual conduct, failure to follow instructions, and failure to follow rules and regulations. UF No. 8; Counts Decl., ¶ 7.

¿ On August 20, 2012, Plaintiff was suspended for 10 days without pay for discourteous and disrespectful conduct toward his supervisors, discourtesy and failing to work harmoniously with other employees, and failure to follow rules and regulations. UF No. 9; Counts Decl., ¶ 8; Exh. 5. Plaintiff refused to follow his supervisor’s direction to see a waiting client, he yelled at a supervisor for placing a work-assignment memorandum on his desk and made derogatory and malicious statements about her. UF No. 10; Counts Decl., ¶ 8; Exh. 5.

¿ On September 9, 2013, Plaintiff was formally conferenced for insubordination for refusing to cooperate with an investigation into a co-worker’s complaint against him. UF no. 11; Counts Decl., ¶ 9;

¿ On July 28, 2014, Plaintiff was suspended for 25-days without pay for insubordination; discourtesy towards other employees, supervisors and managers; failure to perform his assigned duties; failure to cooperate during administrative investigations; and failure to follow instructions and rules and regulations. UF No. 12; Counts Decl., ¶ 10; Exh. 6. The July 16, 2014 letter informing Plaintiff of his 25-day suspension effective July 28, 2014 expressly noted that this would be his sixth time being disciplined for failing to follow Departmental and County policies, and that “should another incident of misconduct occur, you will be discharged from your EW II position and County service.” Exh. 6; July 15, 2014 letter, Page 11 (bold emphasis omitted).

The 25-day suspension was based upon Plaintiff’s conduct in 2014 in sending inappropriate emails outside of his chain of command about his complaints, harassing female co-workers, arriving late to work or from breaks and refusing to provide requested documentation to his supervisor. UF No. 15; Counts Decl., ¶ 11; Exh. 6. Random monitoring of Plaintiff’s response to customer service telephone calls in late 2013 showed that he was not handling calls according to protocol, he dropped a large percentage of calls, and his telephone was on “not ready” mode a large percentage of the time. UF No. 16; Gayton-Jacob Decl., ¶ 10; Exh. 6. Plaintiff also failed to get written preauthorization for a four-hour absence on February 4, 2014, during which time his telephone was not on “not ready” mode, in violation of the attendance policy. UF Nos. 17 – 21; Counts Decl., ¶¶ 12 – 15; Gayton-Jacob Decl., ¶ 11; Exhs. 6, 36, 51;

Plaintiff served this suspension from July 28, 2014 through August 21, 2014. UF No. 13; Gayton-Jacob Decl., ¶ 9.

¿ Arnetta Counts is the Administrative Services Manager in the Human Resource Division who was the decision-maker who determined Plaintiffs 25-day suspension and ultimate discharge discipline. UF No. 14; Counts Decl., ¶¶ 2-3; Exhs. 6-7. Counts had access to records of Plaintiff’s past disciplinary items and considered those in her decision to discharge Plaintiff. UF No. 24; Counts Decl., ¶¶ 3, 23-24.

¿ On September 24, 2014, during a staff meeting conducted by Winna Crichlow, Director of the Customer Service Center, Plaintiff was belligerent, aggressive, and disruptive; he repeatedly interrupted the staff meeting to interject his personal opinion on topics unrelated to the subject being discussed at the meeting. UF No. 26; Counts Decl., ¶ 17; Gatyon-Jacob Decl., ¶ 14. Co-workers reported to Gayton-Jacob that they found Plaintiff’s behavior hostile and it made them uncomfortable, nervous, scared and threatened. UF No. 26; Counts Decl., ¶ 17; Gayton-Jacob Decl., ¶ 14.

¿ On October 15, 2014, a Notice of Expectation – Direct Order was issued in writing to San Martin ordering him to stop misusing the County’s email system in violation of County policy. UF No. 29; Counts Decl., ¶ 19; Gayton-Jacob Decl., ¶ 16; Exh. 22. He was ordered to stop making negative and disparaging statements about fellow employees and to cease emailing executing staff to order them to take action against his supervisors. Id.

¿ On November 6, 2014, Alfredo Gonzales, Director of the Customer Service Center, met with Plaintiff and warned him that the tone of his continuous emails were perceived as an intent to bully or intimidate supervisors and managers. UF No. 30; Gonzalez Decl, ¶¶ 5, 7; Counts Decl., ¶ 21. He was reminded of the need for a safe and courteous workplace environment and that bullying was a violation of DPSS policy. Id. However, on November 21, 2014, Plaintiff disregarded the prior Direct Orders and sent two more inappropriate emails directly to Phil Ansell, Chief Deputy and Sheryl Spiller, Department Director. UF No. 37; Gonzalez Decl., ¶ 9.

¿ In the period September to November 2014, Plaintiff did not follow protocol in the way he handled incoming calls for service and he failed to properly document calls during the four hours a day he was answering calls. UF No. 43; Gonalez Decl., ¶ 11; Counts Decl., ¶ 22; Gayton-Jacob Decl., ¶ 12. Plaintiff was using the “not ready” mode about 65 percent of the time during September to November 2014, whereas Eligibility Workers are expected to put their phones on “not ready” mode no more than 30 percent of the time; he also abandoned 138 calls. UF No. 44; Counts Decl., ¶ 22; Gayton-Jacob Decl., ¶ 13; Gonzalez Decl., ¶¶ 8, 10; Exh. 7.

¿ Plaintiff was issued a Letter of Intent to Discharge on January 30, 2015, and a pre-disciplinary hearing was later conduct by Gerry Bonilla. UF No. 45; Gonzalez Decl., ¶ 12; Counts Decl., ¶ 26; Exh. 7.

¿ Plaintiff was discharged on February 13, 2015 for insubordination and discourtesy towards coworkers, supervisors and managers; failure to perform his assigned duties; and continued failure to follow instructions and rules and regulations. UF No. 46; Counts Decl., ¶ 22; Exh. 7.

¿ Arnetta Counts, the decision-maker on the discharge, considered the evidence presented including poor productivity, failure to follow instructions and discourtesy to others from Plaintiff’s 25-day suspension. UF No. 50; Counts Decl., ¶ 25. The County progressively disciplined Plaintiff but his misconduct included repetitive violations regarding failure to follow instructions and rules and discourtesy. UF No. 52; Counts Decl., ¶ 24. Plaintiff was discharged on the basis provided in the letter of discharge. UF No. 53; Counts Decl., 27. Counts did not treat Plaintiff differently and he was not discharged for a discriminatory or retaliatory reason. UF No. 54; Counts Decl., ¶¶ 27-29.

The foregoing evidence constitutes a legitimate, non-discriminatory reason for Plaintiff’s discharge. The burden shifts to Plaintiff to cite admissible evidence sufficient to raise a triable issue of material fact as to whether Defendant’s proffered reason is a pretext for intentional disability discrimination.

If the employer meets its initial burden in this manner, the plaintiff then has the burden to produce “substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [67 Cal. Rptr. 2d 483].)

The plaintiff must do more than raise the inference that the employer’s asserted reason is false. “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515 [125 L. Ed. 2d 407, 113 S. Ct. 2742].) If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer’s true reason was discriminatory, the employer is entitled to summary judgment. (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203.)

Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (italics in original, bold emphasis and underlining added).

Moreover:

‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] …’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)

Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-60 (bold emphasis added).

The ultimate issue when discriminatory discharge is alleged is what were the employer’s true reasons for terminating the employee. (Guz, supra, 24 Cal.4th 317, 358 [“the ultimate issue is simply whether the employer acted with a motive to discriminate illegally”]; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 [81 Cal. Rptr. 3d 406] [“The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.”].) As indicated above, an employer need not have good cause to terminate an at-will employee. The reason for termination need not be wise or correct so long as it is not grounded on a prohibited bias. (Guz, supra, 24 Cal.4th 317, 358.)

McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1524 (bold emphasis and underlining added).

This is not the standard, however, when an at-will employee is terminated. (Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1390–1391 [77 Cal. Rptr. 2d 383].) “Where the employment contract itself allows the employer to terminate at will, its motive and lack of care in doing so are, in most cases at least, irrelevant.” (Guz, supra, 24 Cal.4th 317, 351; cf. Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 365 [76 Cal. Rptr. 2d 670].) Since an employer does not require good cause to terminate an at-will employee, in the normal course of events an employer need not either articulate or substantiate its reasons, except to provide an advance refutation for any inference that the true reason was illegal. Unless at-will employers are to be held to a good-cause standard for termination, no inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee.

Employee refuses to acknowledge that Employer did not need good cause to terminate his at-will employment. It would be superfluous for us to catalog what has been recognized in the case law as good cause for terminating an employee who is not at-will. We will not be drawn into an extended examination of the sufficiency of the evidence to support each stated reason for Employee’s termination and whether Employee has adequately contradicted the investigator’s conclusions. At most, the lack of any substantiation of the stated reasons would give rise to an inference that Employer must have had other unstated reasons for the termination, but it would not necessarily give rise to a reasonable inference that Employer’s motivation was illegal. Again, we must look elsewhere for evidence creating a triable factual issue as to Employer’s true motivation.

McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1533 (bold emphasis and underlining added).

Here, in his opposing separate statement, Plaintiff does not cite admissible evidence which constitutes substantial evidence that the legitimate, non-discriminatory reason for Plaintiff’s termination was a pretext and that true reason for Plaintiff’s termination was based upon his disability.

“It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”

Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1061.

Plaintiffs “may not rely upon the mere allegations or denials of [their] pleadings,” but must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.] To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10–11 [130 Cal. Rptr. 2d 263] (Wiz Technology).)

Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635, overruled on other grounds in Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1038.

Throughout his opposing separate statement, Plaintiff disputes whether or not he engaged in the conduct for which he was disciplined, and whether or not he followed County policy in sending out email inquiries. However, as noted above, the issue is not whether Defendant’s decision was wrong, mistaken, wise or prudent, but instead whether intentional discrimination was the real motivation for the adverse employment action.

Moreover, Plaintiff argues that Defendant lied about what happened to justify discipline against him. However, the FEHA does not prohibit lying, per se:

The remaining question is whether this factual discrepancy creates a material triable issue. As Employer points out, there must be more than inconsistent justifications for an employee’s termination to support an inference that the employer’s true motivation was discriminatory. Guz, supra, 24 Cal.4th 317 stated: “an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. ([St. Mary’s Honor Center v. ]Hicks[ (1993)] 509 U.S. 502, 521 [125 L. Ed. 2d 407, 113 S. Ct. 2742].) Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. (Id., at p. 517 … .) Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. (Id., at pp. 510–520 … .) Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th 360–361, fn. omitted.)n15

. . .

Logically, disbelief of an Employer’s stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one. As the United States Supreme Court said in the context of a trial, “The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason … is correct.’ [Citation.] In other words, ‘[i]t is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.’ ” (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146–147 [147 L. Ed. 2d 105, 120 S. Ct. 2097], quoting St. Mary’s Honor Center v. Hicks, supra, 509 U.S. 502.) When an employer’s stated reasons are incredible or doubtful, a fact finder must look elsewhere for evidence of the employer’s true reasons.

As indicated above, Employee goes on to argue that he has established pretext through evidence showing that “all three reasons now articulated by” Employer are false. He claims to have “presented abundant evidence that he did cooperate at every turn with the investigation and that he never lied to Ms. Mistry.” This evidence, presumably, is his own declaration.

Employee would like to make this action depend on whether Employer’s stated reasons for terminating him were adequately substantiated, in other words, whether Employer actually had good cause to terminate him. However, that would not be the proper question for the fact finder even if Employer were required to have good cause for Employee’s termination.

As indicated above, one issue resolved in Cotran, supra, 17 Cal.4th 93 was: “When an employee hired under an implied agreement not to be dismissed except for ‘good cause’ is fired for misconduct and challenges the termination in court, what is the role of the jury in deciding whether misconduct occurred? Does it decide whether the acts that led to the decision to terminate happened? Or is its role to decide whether the employer had reasonable grounds for believing they happened and otherwise acted fairly?” (Id. at p. 95.) The court concluded that “it was error to instruct that Rollins could prevail only if the jury was satisfied sexual harassment actually occurred … . On retrial, the jury should be instructed … that the question critical to defendants’ liability is not whether plaintiff in fact sexually harassed other employees, but whether at the time the decision to terminate his employment was made, defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so.” (Id. at pp. 108–109, italics added.) In other words, the question for the fact finder in examining a termination for good cause is whether the termination was objectively reasonable, not objectively justified.

. . .
Employee refuses to acknowledge that Employer did not need good cause to terminate his at-will employment. It would be superfluous for us to catalog what has been recognized in the case law as good cause for terminating an employee who is not at-will. We will not be drawn into an extended examination of the sufficiency of the evidence to support each stated reason for Employee’s termination and whether Employee has adequately contradicted the investigator’s conclusions. At most, the lack of any substantiation of the stated reasons would give rise to an inference that Employer must have had other unstated reasons for the termination, but it would not necessarily give rise to a reasonable inference that Employer’s motivation was illegal. Again, we must look elsewhere for evidence creating a triable factual issue as to Employer’s true motivation.

McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal. App. 4th 1510, 1531-33 (bold emphasis and underlining added).

Plaintiff argues that he was disciplined in part for leaving work to seek treatment relative to a workplace injury on February 4, 2014. Opp. Nos. 12, 17; Plaintiff’s Decl., ¶¶ 10, 14; Exh. A. However, Defendant’s evidence is that, during this four-hour absence, Plaintiff’s telephone was not on “not ready” mode, in violation of the attendance policy. [Def’s Exhs. 6, Page 6.] Plaintiff does not present evidence that he had placed his phone on “not ready” mode. Although Plaintiff claims Defendant’s HR representative testified that no approval from an administrator was needed for even a non-emergency visit and Plaintiff in fact filled out the required forms (Opp. Facts Nos. 18 – 20; Pltf’s Decl., ¶ 14), this goes to whether Defendant’s partial reliance upon this four-hour absence was wrong or mistaken. Moreover, this February 4, 2014 absence was only one of a panoply of reasons given by Defendant for the ultimate determination to terminate Plaintiff’s employment. This does not constitute substantial evidence from which a trier of fact could find that, despite all of the legitimate, non-discriminatory reasons offered for Plaintiff’s termination, the true motivating factor was Plaintiff’s unauthorized four-hour absence to seek treatment for his disability.

Likewise as to Plaintiff’s contention that Counts had no first-hand knowledge of any relevant issue, did not bother to speak to Plaintiff before recommending termination, did not investigate the veracity of any claim against Plaintiff or the reason he was recommended for termination, and thus she made an uniformed, incorrect, and unfounded decision to terminate Plaintiff. Opp. Fact No. 24. However, as noted above, the issue is not whether Defendant’s decision was wrong, mistaken, wise or prudent, but instead whether intentional discrimination was the real motivation for the adverse employment action.

Plaintiff argues that he filed numerous complaints against a Supervisor, Martha Chamalbide, regarding her aggressive and unprofessional behavior. UF No. 12. However, Plaintiff does not demonstrate that this has a connection to his disability, carpel tunnel syndrome.

This Court is mindful of its obligation to “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Moreover, this Court is aware of its duty not to weigh or to judge the credibility of the witnesses.

However, this duty is not necessarily absolute. As discussed supra, any evidence proffered by the opposing party still must be specific and “substantial” in nature in order to create a triable issue of material fact. It cannot be “speculative.” The inferences required to be taken must be “reasonable.” See, e.g., Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc., (2007) 157 Cal.App.4th 628.

Accordingly, Plaintiff has not met his burden of citing admissible evidence which demonstrates that a triable issue of material fact exists as to whether Defendant’s proffered reason is a pretext for intentional disability discrimination.

The motion for summary adjudication as to Issue No. 1 re: the first cause of action is GRANTED.

2. Issue No. 2: “Second Cause of Action of the Complaint for ‘Retaliation for Protected Conduct (Cal. Govt. Code § 12900 se seq.)’ on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the second cause of action (MSJ, Page 10:9), Defendant argues that there is no evidence of retaliatory intent.

The McDonnell-Douglas burden shifting framework applies to a FEHA retaliation claim as well. Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-09. As discussed above re: Issue No. 1, Defendant has demonstrated that a legitimate, non-retaliatory reason exists for his termination. The burden shifts to Plaintiff to raise a triable issue of material fact as to whether he was terminated in retaliation for conduct protected by FEHA.

Gov. Code § 12940(h) provides that it is an unlawful employment practice:

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Gov. Code § 12940(m)(2) provides that it is an unlawful employment practice:

(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.

(Bold emphasis added.)

Plaintiff alleges that he was retaliated against for exercising his FEHA rights for filing a disability complaint with the DFEH. Complaint, ¶ 43. Plaintiff claims that he was given the notice of intent to terminate days after filing his DFEH complaint and giving a copy of his right to sue notification to Defendant. Pltf Decl., ¶ 23. In this regard, Plaintiff claims that he filed a DFEH Complaint on October 1, 2014, which is attaches as his Exhibit E. Opp. Fact. No. 46. However, the DFEH Complaint attached as Exh. E was filed on June 26, 2016 and was amended on July 2, 2015—both after Plaintiff received the letter dated February 13, 2015 giving him notice that his employment was being terminated. Pltf’s Exh. K. Thus, the evidence does not support a reasonable inference that Plaintiff’s employment was terminated in retaliation for Plaintiff filing a DFEH Complaint.

Plaintiff also alleges that he requested reasonable accommodations and complained to his supervisors and Human Resources about discrimination and retaliation. Complaint,¶ 43. Plaintiff claims in his declaration that he made complaints about discrimination and stated that he was going to due Defendants for such violations (Pltf Decl.¶ 10). However, this vague statement does not cite any dates when such complaints or statements were made, nor is any documentary evidence submitted.

Plaintiff indicates that he sent e-mails to his superior, inquiring about the status of ergonomic office equipment to accommodate his disability. Pltf Decl., ¶¶ 12, 18, 19, 20, 21. However, Plaintiff does not specify the dates or content of these emails sufficiently to connect them to the specific emails which formed the partial basis of Plaintiff’s termination as proffered by Defendant. If we are to go by Pltf’s Exhs. F, dated September 6, 2013, as an example, the content of those emails does not reflect any inquiry about the statute of ergonomic equipment. However, one such email string is attached as Pltf’s Exh. H, whereby Plaintiff indicated in an email dated October 3, 2014 indicates that:

The ergonomic equipment was not provided in a timely manner and the equipment I was issued is not adequate and malfunctioning. More importantly, I’m [illegible] rehabilitated. If the right equipment was provided in a timely manner, it would depend on my body’s [illegible] rehabilitation and physicians instructions to proceeds as permanent stationary.

[Illegible], the monitor toggle switch for the mouse is not working properly. The keyboard is too small and actually creates more pain. This keyboard is offered in the departments catalog with no size description and is not compatible with the chair I was provided. The keyboard I require is a split board that can accommodate my large size. Additionally, I need a high quality glare screen. I can provide model numbers at your request.

The [illegible] important issue that gives me unhappiness, hardship and financial distress is related to the discrimination aspect of my workplace injury, which includes being wrongfully suspended. This discrimination is under a protective class, yet the department has subjected me to harassment, workplace mobbing and retaliation.

On September 30, 2014, Plaintiff also sent an email stating in part that: “I was disciplined for my authorized [illegible] for the date of my workplace injury, received continued harassment/retaliation and was not issued ergonomic equipment in a timely manner.” Pltf’s Exh. H.

The notice of termination letter dated February 13, 2015 cited Plaintiff’s emails between October 17, 2014 and November 18, 2014 as the e-mails which form the basis of the decision to terminate Plaintiff. Pltf’s Exh. K, Page 4. The aforementioned emails attached by Plaintiff as exhibits fall outside this October 17, 2014 through November 18, 2014 range of dates.

Pltf’s Exh. M is an email chain from October 30, 2014 to November 7, 2014. This email chain involved Plaintiff’s inquiries about the department grievance process, but does not concern a complaint about discrimination or retaliation, or an inquiry into the status of ergonomic accommodations.

As such, Plaintiff has not submitted substantial evidence that any emails sent by Plaintiff complaining about discrimination, retaliation or requesting accommodation formed the basis for a retaliatory decision to terminate Plaintiff’s employment.

The Court finds that Plaintiff has not met his burden of citing substantial evidence sufficient to raise a triable issue of material fact as to pretext and retaliation.

The motion for summary adjudication as to Issue No. 2 re: the second cause of action is GRANTED.

3. Issue No. 3: “Third Cause of Action of the Complaint for ‘Failure to Participate in the Interactive Process (Cal. Govt. Code § 12926.1(e), 12940(n))’ on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the third cause of action (MSJ, Page 11:20-21[2]), Defendant argues that the County interacted with Plaintiff in good faith.

Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242 [35 Cal. Rptr. 3d 837] (Claudio) [employer may not fail to engage in a timely, good faith interactive process to determine effective reasonable accommodations].) “An employee may file a civil action based on the employer’s failure to engage in the interactive process.” (Claudio, supra, at p. 243.) Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. (Gov. Code, § 12940, subd. (m); Gelfo v. Lockeed Martin Corp. (2006) 140 Cal.App.4th 34, 61 [43 Cal. Rptr. 3d 874] #(Gelfo); Claudio, supra, at p. 242 [employer may not fail to make a reasonable accommodation].) An employer may claim there was no available reasonable accommodation. But if it did not engage in a good faith interactive process, “it cannot be known whether an alternate job would have been found.” (Claudio, supra, at p. 245.) The interactive process determines which accommodation is required. (Ibid.; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7 [102 Cal. Rptr. 2d 55] (Jensen).) Indeed, the interactive process could reveal solutions that neither party envisioned.

Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-25.

n22 Typically, an applicant or employee triggers the employer’s obligation to participate in the interactive process by requesting an accommodation. (§ 12940, subd. (n).) Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266; see also Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115)

Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54-62 n.22.

As discussed below re: Issue No.4, a triable issue of material fact exists as to whether Defendant engaged in good faith interactive process when Defendant did not accept a simple, no-cost solution offered by Plaintiff—that he bring in his own ergonomic equipment from home which he knew to accommodate his disability, at no cost to Defendant. Whether or not the resulting weeks-long delay in Defendant ordering ergonomic equipment for Plaintiff from contracted vendors was reasonable, or constituted a breakdown in the good faith interactive process attributable to Defendant, is for the jury to decide. The fact that Plaintiff may have missed scheduled ergonomic evaluations is for the jury to weigh whether any breakdown in the interactive process was the fault of Plaintiff.

Accordingly, the motion for summary adjudication as to Issue No. 3 re: the third cause of action is DENIED.

4. Issue No. 4: “Fourth Cause of Action of the Complaint for ‘Failure to Provide Reasonable Accommodation (Cal. Govt. Code § 12940(m))’ on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the fourth cause of action (MSJ, Page 19:19), Defendant argues that Plaintiff cannot demonstrate pretext. However, pretext does not go to any element of a failure to accommodate claim, so this argument is moot.

Also as to the fourth cause of action (MSJ, Page 14:22-23), Defendant argues that Plaintiff cannot show that he was not allowed to take medical leave or that he was not provided with ergonomic equipment in a timely manner. Defendant argues that Plaintiff’s modified assignments were accommodations.

In addition to prohibiting disability discrimination, FEHA provides an independent cause of action for an employer’s failure “to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the accommodation would cause “undue hardship” to the employer. (§ 12940, subd. (m)(1).) Once an employer is aware of a disability, it has an “affirmative duty” to make reasonable accommodations for the employee. (Cal. Code Regs., tit. 2, § 11068, subd. (a).)

“Generally, ‘“[t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations. … [¶] … The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or her] disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer’s capabilities and available positions.”’” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [37 Cal. Rptr. 3d 899].) An employee is not required to specifically invoke the protections of FEHA or speak any “‘magic words’” in order to effectively request an accommodation under the statute. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 [62 Cal. Rptr. 2d 142]; see Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1252 [“no particular form of request is required”].) However, the employee must engage in the interactive process and “‘“can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.”’” (Id. at pp. 1252–1253.)

“When a claim is brought for failure to reasonably accommodate the claimant’s disability, the trial court’s ultimate obligation is to ‘“isolate the cause of the breakdown … and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.”’” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 [102 Cal. Rptr. 2d 55].) Thus, “the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that … the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Id. at p. 263.)

Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 597-600.

Here, the Court finds that a triable issue of material fact exists as to whether Defendant offered a reasonable accommodation as to Plaintiff’s ergonomic needs. Plaintiff cites evidence that Defendant’s first two efforts at accommodation were unsuccessful. Gayton-Jacob deposition, Page 285:1-15. Most of the ergonomic equipment provided was “broken or malfunctioning” or not compatible with Plaintiff’s large body size (e.g., keyboard too tiny for Plaintiff’s hands). Opp. Fact No. 68; Pltf’s Decl., ¶¶ 27, 28. Plaintiff cites evidence that he offered to provide his own ergonomic equipment from home at no cost to Defendant, but Defendant turned it down. See Opp. Fact No. 69; Pltf’s Decl., ¶¶ 29, 55, 60. Plaintiff used a vertical mouse at his home office, told Defendant the vertical mouse was compatible with the County’s equipment, had the software necessary to ensure the vertical mouse was useable, and offered to bring in his own vertical mouse from home, which offer was denied. Pltf Decl., ¶ 36. As a result, there was a delay in procuring the appropriate ergonomic equipment for Plaintiff which led to an alleged exacerbation of his existing carpel tunnel syndrome. Pltf Decl., ¶¶ 46, 52, 54.

Accordingly, the motion for summary adjudication as to Issue No. 4 re: the fourth cause of action is DENIED.

5. Issue No. 5: “Fifth Cause of Action of the Complaint for ‘Failure to Prevent Discrimination, Discrimination [sic] or Retaliation (Cal. Govt. Code § 12940(m)’ on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the fifth cause of action (MSJ, Page 21:1-2), Defendant argues that this cause of action fails because Plaintiff cannot demonstrate that he was discriminated or retaliated against.

A failure to prevent claim under FEHA requires that the actual discrimination, harassment or retaliation have actually occurred.

See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 [44 Cal. Rptr. 3d 223, 135 P.3d 637] (‘But courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)’).” We affirm on the same ground.

Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 208, superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239.

For the reasons discussed above re: Issues Nos. 1 and 2, Plaintiff’s discrimination and retaliation claims under FEHA are not viable. Accordingly, the motion for summary adjudication as to Issue No. 5 re: the fifth cause of action is GRANTED.

6. Issue No. 6: “Sixth Cause of Action of Complaint for ‘Wrongful Termination in Violation of Mandatory Statutory Duty and Public Policy” on the basis that there is no merit to that claim, or any claim of damages under that claim.”

As to the sixth cause of action (MSJ, Page 9:2-4), Defendant argues that all issues besides ergonomic equipment were resolved through the administrative proceeding before the civil service commission, Plaintiff failed to exhaust his judicial remedies via a writ of mandamus, and the issues have been resolved and cannot be relitigated. This argument is not persuasive, as collateral estoppel or res judicata does not apply to an administrative review decision as against a subsequent FEHA action where discrimination was not litigated as part of the administrative review process. Henderson v. Newport-Mesa Unified School Dist. (2013) 214 Cal.App.4th 478, 502-503.

In any event, the sixth cause of action is actually two separate causes of action combined into one: (1) a cause of action for wrongful termination in violation of a mandatory statutory duty under Gov. Code § 815.6; and (2) a cause of action for wrongful termination in violation of public policy under FEHA.

Failure To Discharge Statutory Duty.

Gov. Code § 815.6 provides:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

Plaintiff argues that FEHA (Gov. Code § 12940(a), (m), (n)) is the statute which imposes a mandatory duty upon Defendant to refrain from discriminating against Plaintiff due to his disability, to provide reasonable accommodation for Plaintiff’s disability, to prevent Defendant from retaliating against Plaintiff due to his disability, and for complaining to Defendant about the lack of accommodation, to conduct a reasonable and good-faith interactive process with Plaintiff, and to take all necessary steps to insure that all reasonable steps are taken to prevent discrimination and retaliation. Complaint, ¶ 85.

However, in the Complaint Plaintiff does not identify language in FEHA or implementing guidelines which impose an affirmative duty upon the County of Los Angeles. As such, FEHA does not impose a mandatory duty upon Defendant County of Los Angeles for purposes of liability under Gov. Code § 815.6 as a matter of law:

The elements of liability under Government Code section 815.6 are as follows: “First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]” (Haggis, supra, 22 Cal.4th at p. 498.) Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment “affirmatively imposes the duty and provides implementing guidelines.” (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510 [44 Cal. Rptr. 3d 531] (O’Toole); see Clausing v. San Francisco Unified School Dist. (1990) 221 Cal. App. 3d 1224, 1240 [271 Cal. Rptr. 72] (Clausing) [“If rules and guidelines for the implementation of an alleged mandatory duty are not set forth in an otherwise prohibitory statute, it cannot create a mandatory duty.”].)

Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897-98 (bold emphasis and underlining added).

To construe a statute as imposing a mandatory duty on a public entity, “the mandatory nature of the duty must be phrased in explicit and forceful language.” (Quackenbush v. Superior Court (1997) 57 Cal.App.4th 660, 663 [67 Cal. Rptr. 2d 300].) “It is not enough that some statute contains mandatory language. In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the [public entity] … .” (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896–897 [45 Cal. Rptr. 2d 646].) Thus, “the enactment at issue [must] be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.” (Haggis, supra, 22 Cal.4th at p. 498.) In addition, the enactment allegedly creating the mandatory duty must impose a duty on the specific public entity sought to be held liable. (Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48, 54 [123 Cal. Rptr. 2d 721].)

In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689 (bold emphasis and underlining added).

In order for Government Code section 815.6 to be applicable, the enactment relied upon must impose a mandatory duty, not a discretionary duty; neither must the enactment simply set forth a prohibition or a right, as opposed to an affirmative duty on the part of a government agency to perform some act. (Tirpak v. Los Angeles Unified School Dist. (1986) 187 Cal.App.3d 639, 642-646 [232 Cal.Rptr. 61].) In every case, “[t]he controlling question is whether the enactment at issue was intended to impose an obligatory duty to take specified official action to prevent particular foreseeable injuries, thereby providing an appropriate basis for civil liability. [Citation.]” (Keech v. Berkeley Unified School Dist. (1984) 162 Cal.App.3d 464, 470 [210 Cal.Rptr. 7].) The question of whether an enactment is intended to impose a mandatory duty on a public entity to protect against a particular kind of injury is a question of law. (Morris v. County of Marin (1977) 18 Cal.3d 901, 906-911 [136 Cal.Rptr. 251, 559 P.2d 606]; Tirpak v. Los Angeles Unified School Dist., supra, 187 Cal.App.3d at p. 642.)

In our opinion, none of the statutory or constitutional provisions cited by appellants create the kind of affirmative, mandatory duty to which Government Code section 815.6 applies.

Thus, Education Code sections 49000 and 49001, as enacted in 1986 (Stats. 1986, ch. 1069, §§ 1-4, pp. 3749-3750), prohibit corporal punishment in the public schools of this state. These statutes are clearly prohibitory in effect; they set forth an express statutory prohibition on certain conduct, with certain enumerated exceptions. Although they may establish important rights and confer significant benefits on members of the public (cf. Slayton v. Pomona Unified School Dist. (1984) 161 Cal.App.3d 538, 550-553 [207 Cal.Rptr. 705]), they do not create any mandatory, affirmative duty on the part of public schools and school districts to take action or carry out measures to ensure that students are never subjected to corporal punishment by teachers. The statutes set forth no guidelines or rules for schools to follow in implementing an affirmative duty to prevent corporal punishment.

If rules and guidelines for the implementation of an alleged mandatory duty are not set forth in an otherwise prohibitory statute, it cannot create a mandatory duty. (Cf. Nunn v. State of California (1984) 35 Cal.3d 616, 624-626 [200 Cal.Rptr. 440, 677 P.2d 846].)

Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239-40 (bold emphasis and underlining added).

Wrongful Termination in Violation of Public Policy

Although the FEHA may form the basis for a common law (“Tameny”) cause of action for wrongful termination in violation of public policy[3], a Tameny claim does not lie against a public entity. “[W]e agree with the Palmer court that section 815 bars Tameny actions against public entities.” Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900.

For the foregoing reasons, Plaintiff’s sixth cause of action fails in its entirety as a matter of law. The motion for summary adjudication as to Issue No. 6 re: the sixth cause of action is GRANTED.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 27, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] In short, for an opposing party: “undisputed” facts are bad; “disputed” facts are good.

[2] The reference to the first cause of action appears to be erroneous, as good faith interaction is not an element of a cause of action for disability discrimination under FEHA.

[3] See, e.g., Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660, superseded by statute on other grounds, as stated in Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180, 205

Case Number: BC655676 Hearing Date: December 27, 2018 Dept: 47

Daniels, Fine, Israel, Schonbuch & Lebovits, LLP v. Larry Rabineau, et al.

MOTION TO COMPEL DEPOSITION

MOVING PARTY: Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges it agreed with Defendants to share the costs of litigation regarding representation of a client in a personal injury lawsuit. Defendants have allegedly failed to pay their share of costs as agreed.

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP moves to compel the deposition of Virginia Narian.

TENTATIVE RULING:

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP’s motion to compel the deposition of Virginia Narian is GRANTED. Deposition to occur no later than January 10, 2019, on a date, place and time to be unilaterally (yet reasonably) determined by moving party.

DISCUSSION:

Motion To Compel Deposition

Plaintiff moves to compel the deposition of Virginia Narian, an employee of the Rabineau Defendants, who failed to appear for her November 2, 2018 deposition and has refused to respond to Plaintiff’s requests to schedule Defendant’s deposition.

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

CCP § 2025.280.

CCP § 2025.450 provides:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(c)

(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

. . .

(h) If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.

Here, Plaintiff submitted a sufficient meet and confer declaration. See Declaration of Parham Nikfarjam, ¶¶ 5, 6; Exhs D & E.

Because party-affiliated witness Virginia Narian has failed to appear for her noticed depositions, Plaintiff is entitled to an order compelling Narian’s deposition. [The Court notes that the Notices of Deposition did not specify any documents to be produced, so good cause for such production need not be shown.]

Plaintiff’s motion to compel the deposition of Virginia Narian is GRANTED. Deposition to occur no later than January 10, 2019.

Plaintiff did not formally request sanctions, and as such, none will be awarded.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 27, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Case Number: 18STCV07346 Hearing Date: December 27, 2018 Dept: 51

MOVING PARTY: Plaintiff Briarwood Owners’ Association, Inc.

OPPOSITION: None Received (due on December 13, 2018)

REPLY: None Received

Background

Plaintiff Briarwood Owners’ Association, Inc. (“Plaintiff”) manages a condominium project known as Briarwood. Plaintiff alleges that two of Briarwood’s residents (Charles Pendell in Unit 107 and Henry Golliday in Unit 109) have failed to clean and maintain their units in such a manner as to permit an active cockroach infestation to develop in each of their units. Plaintiff also alleges that that Plaintiff’s cockroach exterminator has been unable to treat the units due to the units’ uncleanliness, and that the residents have failed to clean their units despite requests to do so. Plaintiff further alleges that the failure to clean and maintain the units has caused annoyance and disturbance to the surrounding residents of Briarwood. Plaintiff alleges that all of these acts violate the CC&Rs which govern Briarwood.

On December 6, 2018, Plaintiff filed a Complaint against Defendants Charles Pendell, Henry Golliday, and Doe Defendants for equitable relief and damages based on the following causes of action:

Breach of CC&Rs (Unit 107);

Nuisance (Unit 107);

Breach of CC&Rs (Unit 109);

Nuisance (Unit 109)

On December 12, 2018, the Court granted Plaintiff’s Ex Parte Application for a Temporary Restraining Order. The Temporary Restraining Order requires Defendants Charles Pendell and Henry Golliday (hereinafter “Defendants”) to permit Plaintiff access Units 107 and 109 in order to eradicate the ongoing cockroach infestations. The Court also ordered Defendants to appear on December 27, 2018 to show cause as to why a preliminary injunction should not be issued.

The Court considered the papers and rules as follows on the Order to Show Cause re: Preliminary Injunction.

Preliminary Injunction Standard:

An injunction is an order requiring a person to refrain from a particular act or to do a particular act. (People ex rel. Gwinn v. Kothari (2000) 83 Cal. App. 4th 759, 765 (citing Code Civ. Proc. § 525).) A provisional or preliminary injunction can issue when the standards of Code Civ. Proc. § 526, subd. (a) are met. Additionally, a court may grant injunctive relief based on declarations showing sufficient factual grounds for relief. (Code Civ. Proc., §¿527, subd. (a).)

In deciding whether to issue a preliminary injunction, the trial court should evaluate two factors. “The first is the likelihood that the [moving party] will prevail on the merits at trial. The second is the interim harm that the [moving party] is likely to sustain if the injunction were denied as compared to the harm that the [responding party] is likely to suffer if the preliminary injunction were issued.” (Metro Traffic Control. Inc. v. Shadow Traffic Network (1994) 22 Cal. App. 4th 853, 858; Universal Life Church. Inc. v. State (1984) 158 Cal. App. 3d 533; IT Corp. v. County of Imperial, (1983) 35 Cal.3d 63, 69.)

The Court’s determination is guided by a “mix” of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, a trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. Id. (See also Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749 (stating that a preliminary mandatory injunction can be granted only where the plaintiff has made a showing of reasonable probability that plaintiff will prevail at trial on the merits).) Conversely, the more likely it is that plaintiff will ultimately prevail, the less severe must be the harm that plaintiff alleges will occur if the injunction does not issue. This is especially true when a requested injunction maintains, rather than alters, the status quo. (King v. Meese (1987) 43 Cal.3d 1217.)

In issuing injunctive relief, the trial court “must exercise its discretion in favor of the party most likely to be injured. . . [i]f the denial of an injunction would result in great harm to the plaintiff and the defendants would suffer little harm if it were granted, then it is an abuse of discretion to fail to grant the preliminary injunction.” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205 (internal citations omitted).)

Analysis

As a preliminary matter, Defendants did not file an Opposition to this matter. Lack of opposition does not automatically entitle the moving party to prevail. Nonetheless, a party’s failure to file opposition can be considered as an admission that the motion is meritorious, and the Court can refuse to hear oral argument from such party. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Likelihood that the Moving Party will Prevail on the Merits at Trial

All of the causes of action in Plaintiff’s Complaint are brought as breaches of the CC&Rs. (See Complaint.) Since CC&Rs are treated as written contracts, a Plaintiff pleading a breach of CC&Rs must plead the elements of breach of contract. (Treo @ Kettner Homeowners Ass’n v. Superior Court, (2008) 166 Cal.App.4th 1055, 1066.) The elements of a breach of contract claim are (1) the existence of contract between Plaintiff and Defendants; (2) Plaintiff’s performance or excuse for nonperformance; (3) the Defendants’ breach; and (4) any resulting damages. ¿(E.g., Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

Here, Plaintiff presents an authenticated copy of pertinent portions of the Briarwood CC&Rs, which is binding all owners including Defendants. (Solis Decl., ¶¶ 3, 4; Ex. A.) The relevant provisions are as follows. Section 2.9 of the CC&Rs provides that, “All rubbish, trash, and garbage shall be regularly removed from each Unit and shall not be allowed to accumulate there or on the adjacent Common Area.” (Solis Decl., ¶ 3, Ex. A, p. 8.) Section 2.4 of the CC&Rs states that, “No Unit shall be used in such manner as to interfere with the enjoyment of occupants of other Units or to annoy them by unreasonable noises or otherwise; nor shall any nuisance, or illegal activity shall be carried on in any Unit.” (Id., p. 6.) Section 10.4 provides that, “The result of or condition caused by any violation of any said limitations, restrictions, conditions or covenants is and shall be a nuisance, and every remedy at law or inequity now or hereafter available against a public or private nuisance may be exercised by an enforcing person.” (Id., p. 31.) Lastly, Section 10.3 makes clear that any breach of may be enjoined or remedied by “the Association.” (Ibid.)

Next, Plaintiff presents evidence of Defendants’ breaches pursuant to the CC&Rs. Plaintiff provides the declaration of Wil Solis, who is the manager of Plaintiff and handles day-to-day operations at Briarwood. (Solis Decl., ¶¶ 1,2.) Solis declares that around a month before December 7, 2018, he saw “that the units [107 and 109] were not clean or properly maintained, that there was an excessive amount of clutter in both, and that they were both overrun by roaches.” (Id., ¶ 5.)

As evidence of damages, Plaintiff presents two emails that Solis received from other residents at Briarwood, each of whom have complained about the cockroaches. (Solis Decl., ¶¶ 12, 13, Exs. D, E.) One of the residents (in Unit 209) claims that she has “live roaches, multiple each day” in her Unit, and that it is a “health concern.” (Solis Decl., ¶ 13, Ex. E.) The resident also states she has been unable to rent her Unit and has lost $6,000 as a result. (Id.) In addition, Solis declares that his office “continues to receive complaints and reports […] from neighboring owners” (Solis Decl., ¶ 14) and that “the infestation problem has reached a level that amounts to a severe health and safety risk to the surrounding residents at Briarwood.” (Id., ¶ 11.)

Given the above evidence, and the lack of an Opposition from Defendants, the Court finds the evidence sufficient to show a likelihood that Plaintiff will prevail on each element of its causes of action at trial. Accordingly, the Court concludes that the first prong is in favor of Plaintiff. As such, the analysis proceeds to the second prong.

Comparative Interim Harm Between Plaintiff and Defendants

If the injunction is denied, Plaintiff argues it will suffer irreparable harm due to the ongoing health risk suffered by Briarwood residents. As evidence, Plaintiff cites to the two emails Solis received from other residents at Briarwood, each of whom have complained about the cockroaches. (Solis Decl., ¶¶ 12, 13, Exs. D, E.) One resident (in Unit 105) states that he has killed around “40-50 active roaches” and that he is concerned about the “severity” of the “health risk it poses.” (Solis Decl., ¶ 12, Ex. D.) Another resident (in Unit 209) states she experiences “live roaches, multiple each day” in her Unit, and that she too believes it is a “health concern.” (Solis Decl., ¶ 13, Ex. E.) Furthermore, Solis declares that his office “continues to receive complaints and reports […] from neighboring owners” (Solis Decl., ¶ 14) and that “the infestation problem has reached a level that amounts to a severe health and safety risk to the surrounding residents at Briarwood.” (Id., ¶ 11.)

Given the above evidence, and the lack of an Opposition from Defendants, the Court finds the that the denial of the injunction would result in significant harm to Plaintiff due to the health risk caused by the cockroach infestation.

In contrast, Defendants present no evidence of the harm they would suffer if the injunction is granted.

Accordingly, the Court concludes that the balancing of harms weighs in Plaintiff’s favor.

Therefore, Plaintiff’s Motion for a Preliminary Injunction is GRANTED.

Conclusion:

Plaintiff’s Motion for a Preliminary Injunction is GRANTED.

Plaintiff to give notice.

Dated:

__________________________________________

Dennis Landin

Judge of the Superior Court

Case Number: BS170239 Hearing Date: December 28, 2018 Dept: 7

TENTATIVE] ORDER RE: CLAIMANT’S MOTION TO QUASH RESPONDENT’S SUBPOENA; GRANTED

On July 20, 2017, Claimant Daniel Geoulla (“Claimant”) filed a Petition to Assign Case Number for Purpose of Discovery Motions against Respondent California Automobile Insurance Company (“Respondent”) relating to an October 3, 2013 automobile accident. On September 6, 2018, Respondent served subpoenas on Mercury Insurance Company and 21st Century Insurance Company seeking insurance records. (Declaration of Mahsa Farid, ¶ 2; Exh. A.) Claimant moves to quash the subpoenas on grounds they violate his right to privacy, are overbroad as worded, and violate work product privilege.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

The subpoenas seek any and all non-privileged documents and records contained in the insurance file, including policy agreements, claims, payments made, and medical reports, from February 3, 1999 to present. Respondent argues the items sought have no relevancy to the present claim and violate his right to privacy. Further, insurance files are protected by Insurance Code section 791 et seq. and third-party privacy rights. (See Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 321 [discovery of insurance claim files may be conditioned on obtaining the written consent of the persons to whom the files relate].)

Respondent filed no opposition to this Motion. Accordingly, the Court finds the subpoenas, as worded, are overbroad, as they seek any and all records in insurance claim files from 1999 to present, seek information that violates privacy rights, and Respondent has not shown good cause to discover the records sought.

The Motion to quash is GRANTED.

The court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (Code Civ. Proc., § 1987.2, subd. (a).)

The Court finds the subpoenas as worded were made without substantial justification, as they were not narrowly tailored to seek information directly relevant both time and categories of records sought. Monetary sanctions are GRANTED and imposed against Respondent and counsel of record, jointly and severally, in the reduced amount of $560.00 for two hours at Claimant’s counsel’s hourly rate and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.